1

Contents
(I) SOURCE OF FEDERAL IMMIGRATION POWER..................................7
(A) CASE LAW....................................................................................................................7
(1) PING V. U.S. (CHINESE EXCLUSION CASE)........................................................................7
(2) YICK WO ....................................................................................................................8
(3) FONG YUE TING—........................................................................................................8
(B) DELEGATED POWERS.................................................................................................8
(1) WAR POWER.................................................................................................................8
(2) SOVEREIGNTY...............................................................................................................8
(II) FEDERAL AGENCIES AND COURTS..................................................9
(A) FEDERAL AGENCIES.................................................................................................10
(1) DEPARTMENT OF JUSTICE..............................................................................................10
(2) DEPARTMENT OF STATE................................................................................................12
(B) OTHER FEDERAL AGENCIES....................................................................................12
(1) DEPARTMENT OF LABOR................................................................................................12
(2) UNITED STATES INFORMATION AGENCY.............................................................................12
(C) RESTRUCTURING.......................................................................................................12
(D) COURTS......................................................................................................................13
(III) ADMISSIONS; CATEGORIES; GROUNDS OF INADMISSIBILITY...14
(A) IMMIGRANTS..............................................................................................................14
(1) FAMILY-SPONSORED IMMIGRANTS/ PREFERENCES ....................................14
(2) EMPLOYMENT-BASED IMMIGRATION .................................................................................21
(B) NON-IMMIGRANTS.....................................................................................................26
(1) F VISA....................................................................................................................27
(2) H-2A VISA – TEMP. AGR. WORKER...............................................................................27
(3) H-2B VISA – TEMP NON-AGRIC. WORKER.......................................................................27
(4) H-1B VISA – SPECIALTY OCCUPATION CATEGORY..............................................................28
(5) O & P NONIMMIGRANTS VISAS......................................................................................29
(6) L NONIMMIGRANT VISAS L-1 VISAS.................................................................................29
(7) E NONIMMIGRANT VISAS E-2 VISAS.................................................................................30
(8) B1 NONIMMIGRANT VISAS B1 VISAS...............................................................................31
(IV) INADMISSIBILITY OF ALIENS ..........................................................33
(B) GROUNDS FOR INADMISSIBILITY ...........................................................................33
(1) HEALTH RELATED GROUNDS § 212(A)(1) P. 107 (SM A)...................................................33
(2) CRIMINAL CONVICTIONS § 212(A)(2) P. 109 (SM A)....................................................33
(3) FRAUD AND WILLFUL MISREPRESENTATION § 212(A)(6)(C) P. 122(SM A).............................33
(4) NATIONAL SECURITY § 212(A)(3)...................................................................................35
(5) TERRORISTS § 212(A)(3)(B)(I), (II), (III)..........................................................................35
(6) FOREIGN POLICY..........................................................................................................35
(C) STATUTE (§212)..........................................................................................................37
(D) JUDICIAL REVIEW OF VISA DENIALS......................................................................42
(E) 1996 AMENDMENTS...................................................................................................42
(F) MODERN ADMISSION PROCEDURES.......................................................................43
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(1) NONIMMIGRANT ADMISSIONS............................................................................................43

(2) IMMIGRANT ADMISSIONS.................................................................................................43
(3) ADJUSTMENT OF STATUS................................................................................................44
(4) PAROLE - § 212(D)(5)................................................................................................46
(5) RE-ADMISSION OF LPR’S..............................................................................................46
(II) ADMISSION PROCEDURES .....................................................................................47
(G) EXPEDITED REMOVAL .............................................................................................51
(1) EXPEDITED REMOVAL, GENERALLY....................................................................................51
(H) DEPORTATION............................................................................................................55
§A THE DEPORTATION POWER.............................................................................................55
2) GROUNDS OF DEPORTABILITY..........................................................................................56
- CONDITIONS OF RELEASE COULD INCLUDE BOND – FOR BOND, ALIEN MUST DEMONSTRATE TO THE
SATISFACTION OF THE OFFICER THAT SUCH RELEASE WOULD NOT POSE A DANGER TO PROPERTY OR
PERSONS, AND THAT THE ALIEN IS LIKELY TO APPEAR FOR ANY FUTURE PROCEEDINGS. SEE 8.C.F.R. §
236.1(C)(2)...................................................................................................................64
(V) CONSTITUTIONAL PROTECTION AFTER ADMITTANCE:
ALIENAGE LAW........................................................................................70
(A) PUBLIC BENEFITS......................................................................................................70
CASE WHERE WELFARE REFORM ACT SIGNIFICANTLY RESTRICTED ELIGIBILITY OF NON-CITIZENS TO
RECEIVE WELFARE BENEFITS. BENEFITS ONLY GIVEN TO “QUALIFIED ALIENS:” LPR, REFUGEES AND
ASSYLEES, AND CERTAIN OTHER CLASSES. ...............................................................................72
(B) UNAUTHORIZED IMMIGRANTS IN THE U.S..............................................................73
(1) WHY DO UNDOCUMENTED IMMIGRANTS ENTER THE U.S.?......................................................73
(2) IMPACT OF UNAUTHORIZED IMMIGRATION IN THE U.S.............................................................73
(3) CONTROLLING UNDOCUMENTED IMMIGRATION.......................................................................73
(C) DEPORTATION............................................................................................................74
(1) THE DEPORTATION POWER..............................................................................................74
(2) GROUNDS OF DEPORTABILITY..........................................................................................77
(D) RELIEF FROM REMOVAL...........................................................................................80
(1) WAIVERS OF THE INADMISSIBLITY OF AN ALIEN....................................................................80
(E) EXPEDITED REMOVAL...............................................................................................83
(1) EXPEDITED REMOVAL, GENERALLY....................................................................................84
(2) REINSTATEMENT OF REMOVAL ORDERS..............................................................................85
(3) REMOVAL OF TERRORISTS..............................................................................................85
(4) REMOVAL OF ALIENS WITH CRIMINAL CONVICTIONS..............................................................86
(5) SECRET EVIDENCE........................................................................................................86
(6) PUBLIC ACCESS..................................................................................................87
(F) DETENTION.................................................................................................................90
(1) STATUTORY OVERVIEW.....................................................................................91
(2) CONSTITUTIONAL LIMITS...................................................................................92
(3) MANDATORY DETENTION PENDING REMOVAL PROCEEDINGS.....................................................92
(4) CLAIMS THAT DETENTION IS DISCRIMINATORY.......................................................................95
(5) INDEFINITE DETENTION WHEN REMOVAL ORDER HAS BEEN ISSUED BUT THE ALIEN CANNOT BE REMOVED.
95
(G) JUDICIAL REVIEW OF ORDERS OF REMOVAL-- § 242...........................................97
(1) JUDICIAL REVIEW IS ONLY ALLOWED IN CERTAIN CASES............................98
(B) INA §242(A)(2) MATTERS NOT SUBJECT TO JUDICIAL REVIEW...........................99
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INTRODUCTION AND HISTORY OF IMMIGRATION

Terms and terminology

Alien: INA §103---any person who is not a citizen or national of the U.S..
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Immigrant: documented foreigners which may include persons in U.S. for a #

of years
Illegal aliens: undocumented migrants
Refugee: persons who seek asylum because they are fleeing their country.
Lawful permanent (LPR), green card holders, who are governed by 2 general
resident: categories--family sponsored and employee based
sponsorship.

National: INA §101(21) & §101(22)--a person (citizen or noncitizen) giving

permanent allegiance to a state. There is a reciprocal duty of a
state to give protection to a national.

Remember: To study and understand immigration law, you must look at statutes
first, cases second, and policy third. Much of immigration policy is
decided administratively.

STATUTORY INTERPRETATION

1) Plain language of statute. In matters of statutory interpretation, a court must

interpret statutes in light of the purposes Congress sought to achieve in
enacting it. Absent a clearly expressed legislative intent to the contrary,
statutory language is regarded as conclusive.

2) Cts deferential to agency interpretation. Chevron. 2 prong test:

(1) Is Congressional intent clear? If so, end of matter. If not,
(2) Is the agency’s interpretation a permissible statutory construction?
(deferential standard)

3) Look at legislation history and intent of Congress. Furthermore, Supreme

Court in Kleindest v. Mandel held that a court must uphold legislation if there
is a “facially legitimate and bona fide reason” for the statute’s enactment and it
should not look behind INS’ discretion in immigration decisions for that reason.

4) “Clear statement rule” of statutory construction for Deportation Statutes 

Has Congress stated with clarity what grounds shall render the alien
deportable?
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REMEMBER:
Federal govt. has exclusive power to regulate immigration—due to Constitution’s grant to
fed’l govt. of power to establish uniform rule of Naturalization and Congress’ plenary power to
conduct foreign affairs. Article 1, Section 8.
Also S. Ct. held that federal govt.’s power to control immigration is inherent in a nation’s
sovereignty. See Chinese Exclusion Case and Fong Yue Ting.
Judicial inquiry into immigration legislation is limited. Court has repeatedly emphasized
Congress’ sole and absolute power concerning admission of aliens and limited judicial
responsibility to review Congress’ line-drawing. See Fiallo v. Bell.
Also, in exercising its broad power over immigration and naturalization, Congress
‘regularly makes rules that would be unacceptable if applied to citizens.’ There is a
narrow standard of review for immigration and naturalization decisions. Matthews v. Diaz
Alien admission, naturalization, and regulation of conduct are within the fed gov’ts exclusive
power. So, state laws are preempted by Congressional authority to regulate activities of
resident aliens. Graham v. Richardson.
Level of judicial scrutiny of federal classifications involving alienage is far more deferential than
that applied to states. Matthews v. Diaz.
Despite Congress’ plenary power over immigration and naturalization in Chinese Exclusion
Case, federal power over aliens is not so plenary that any agent of the National Govt. may
arbitrarily subject all resident aliens to different substantive rules from those applied to citizens.
Mow Sun Wong????
S. Ct. has consistently recognized that immigration laws have long distinguished b/w aliens
seeking admission…and those in US after an entry, irrespective of its legality. Fong est’d there
is Congressional power to deport foreigners. Also stands for the proposition that due
process applies in deportation proceedings. However, excludable aliens have NO DUE
PROCESS rights in the admissions process.
• In Mezei, S. Ct. noted that “aliens who have once passed through our gates, even
illegally, may be expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law.”
• An excludable alien has no procedural due process rights regarding admission
or exclusion. S. Ct. stated in Knauff that “whatever the procedure authorized by
Congress is, it is Due Process as far as an alien denied entry is concerned.”
• Yet, In Landon v. Plasencia, S. Ct. said that a resident alien briefly leaving US is
entitled to DP on return. But in a footnote to the case, Court claimed that exactly
what DP procedures are due was not decided. Whether the excursion was brief,
and if alien intended to abandon US and his LPR status is determined on a factual
case by case basis.
IN SUM:
Fiallo, Mandel, largely immunize the political branches’ substantive immigration decisions (i.e.
what categories of aliens are allowed to enter and remain in the US) from judicial scrutiny. S.
Ct has repeatedly claimed that a court must uphold legislation if there is a “facially legitimate
and bona fide reason” for the statute’s enactment and that it should not look behind the INS’
discretion in immigration decisions for that reason. See Kleindest v. Mandel.
Knauff-Mezei doctrine largely immunizes the political branches’ procedural decisions in
exclusion cases.
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Japanese Immigrant , Plasencia, and other cases suggest greater judicial scrutiny for
procedural due process claims.
Wong Wing places constitutional constraints on government imposed punishment.
• Wong Wing afforded 5th and 6th Amendment protections to aliens, but only with
respect to criminal sanctions, not immigration proceedings. Thus while legislation
incarcerating for violation of immigration laws can be imposed, such legislation must
provide for a judicial trial to establish guilt of accused.
 7

(I) SOURCE OF FEDERAL IMMIGRATION POWER

Since the founding of US there has being national discussion over how many and what kind of
immigrants should be permitted to enter and reside. Nothing in Constitution gives Congress
authority over immigration policy. S. Ct. did not address the source of Congress’ power over
immigration until Chinese immigration was at the heart of the debate and Chinese Exclusion Act
became 1st federal immigration statute to be subjected to judicial scrutiny.

(A) CASE LAW

(1) PING V. U.S. (CHINESE EXCLUSION CASE)

 Issue: whether Congress could exclude immigrants, including resident aliens,
from returning to U.S. vis-a-vis the Chinese Exclusion Act.
 Has never been overturned and based on sovereignty. Why doesn’t the
provision in Constitution of ex post facto apply as law was passed after alien
left? Ex post facto applies to criminal issues and removal is not criminal
and bears no grounds in this case.

 doctrinal holding was that U.S. can regulate the entrance of immigrants b/c
 Plenary power of Congress severely limits aliens’ constitutional
rights when it comes to entering or remaining in this country, as
immigration is a constitutional oddity.
 We can regulate whenever a national purpose, or public good, is at
issue with foreign aliens,
 The power to regulate immigration is inherent in the concept of a
sovereign nation.
 What then can the judiciary branch do? Court should have right to
review certain things for due procedural process.
 Yet due to Congress’ plenary power further debate on the issue
must be taken up with the political department, which is solely
competent to act on matter as Court is not a censor of the morals of
gov’tal dep’ts, b/c Congress is given power to regulate commerce with
foreign nations, even if boldly extrapolated from Constitution.
 Under Curtis-Wright reasoning, the Constitution is no longer
scrutinized to find immigration powers. Now, “ power to regulate the
flow of noncitizens over [U.S.] borders is inherent in the concept of
sovereignty.”
 Does the President’s power come from Plenary power of legislative
branch? Enemy Alien Act gives President (Commander in Chief) power
to deal with enemy aliens, BUT care needs to be taken when applying this
rule, as war has to be declared on nation whose people are expelled.
 Assumption: immigrants, mainly Chinese could not assimilate and
must be regulated.
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(2) YICK WO
Held that immigrants within U.S. borders are protected by Constitution in
non-immigration matters.
Dealt with Chinese laundromat owners where “no reason for [the
discrimination] exists except hostility to the race and nationality to which the
petitioner belongs.” But Constitutional protections were applied as it was seen
as violation of the Equal Protection Clause, based on “proposition that
noncitizens are members of the constitutional community.”
Note that Chinese in Yick Wo were already in U.S. In Chinese Exclusion, plaintiff
was seeking admission.
Note that Court can find creative ways to avoid the plenary power of Congress

(3) FONG YUE TING—

Held that there is Congressional power to deport foreigners
Gov’t issuing certificates to Chinese laborers only if they had a credible, white
witness, failure would lead to arrest and eventual deportation.
Fong also stands for two propositions:
1. Deportation is not punishment and criminal
2. Due process procedures apply in deportation/removal proceedings
♦ Right to exclude and deport are two sides of the same coin
and rest on same source of Congressional power --inherent
sovereignty of independent nations. Thus US have a right to refuse to
admit a foreigner into the country, or remove that person from U.S.
soil.
♦ Due process provides trial by jury. Yet expedited removal
provides no hearing and usually undertaken in removal of illegal
immigrants.
Substantive Due Process looks at underlying fairness or substance of law. It
is not a barrier for the process of removal, which was decided by Fong.
Procedural Due Process gives notice and opportunity to be heard.

(B) DELEGATED POWERS

(1) WAR POWER

Grants Congress power to declare war and gives federal gov’t authority to stop
entry of enemy aliens and expel enemy aliens residing in U.S.
Constitutionality of this provision has been consistently upheld. But may not
mean this power authorizes the massive number of statutes presently
regulates immigration.

(2) SOVEREIGNTY
Argument is that every sovereign nation has the power to control their borders
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(II) FEDERAL AGENCIES AND COURTS

Generally immigrants coming to US need a visa. But there’s a visa exception program
where some immigrants are excluded simply b/c of their country of origin. This includes
Japan, U.K. Belgium and France non-immigrants seeking 90 days admission b/c of
their low visa abuse rates.
Process of obtaining a visa:
1) Petition goes to DHS to verify family relationship via Form I-130--
Visa Issuance
is
Petition for Alien Relative or DOL for employment relationship via Form
responsibility I-140—Immigration Petition for Alien Worker, often with labor
of Bureau of certification. Person filling out form is a benefactor. Denied petitions
Consular can be appealed before BIA in the Department of Justice--DOJ.
Affairs
2) National Visa Center checks for accuracy and notifies consular
abroad, who arranges an interview of prospective immigrant and
nonimmigrant applicants. Interview does not take place until the priority
date is reached (priority date is when the processing of the
preference category has been reached which marks an immigrant’s
place on the waiting list). Preference category determines if applicant
is coming to U.S. as a student or as a tourist.

3) Applicant fills out an application, swears to it, and is briefly

interviewed. If there is ground for inadmissibility, the visa is denied.
Usually when a visa is denied, it may be reviewed by another consular
officer at the post. If it is of severed importance, it can be referred to the
dept of state office for an advisory opinion. Assuming that there are no
grounds of Inadmissibility, the visa is granted.

 For those applying for an apr (green card), a photo, fingerprint, and
signature is required.
 Green Card/ Permanent Resident Card is not issued abroad. B-1
and B-2(business/visitor) visa could be applied for and issued by
mail. Since 9/11 student delays are longer and DHS has refused to
waive the student interview process.

 Most immigrants with a visa can take multiple trips to US. Yet a visa
does not guarantee admission-- INA 221(h). Immigration officials at
border or port of entry representing DHS are not bound to counsular’s
(officers of Department of State) granting of visas.

 A person could be detained for formal removal hearing even if

issued a visa.

 Arrival/departure record (pg. 712 of supplement) --a form that must be

completed by all immigrants, permits DHS to keep track of whether
immigrants have left and length of their stay.
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 Functions of DHS include:

 visa responsibilities and works to maintain an effective visa process
safeguarding the U.S,
 right to review visa policy, and consulate officials abroad who issue
visas,
 veto visa issuance, but
 cannot issue visas.

(A) FEDERAL AGENCIES

(1) DEPARTMENT OF JUSTICE

• Secretary of Homeland Security under INA §103(a)(1)*pg 47- 48 has principal

authority for administering and enforcing all laws related to immigration and
naturalization, except those conferred to the Attorney General, President and other
officials. She also has authority under this statute to delegate responsibilities to
officers of the service (the INS) and also to other officers or employees of the DOJ.

• Immigration Judges are part of this dep’t and are not Article 3 judges but
rather administrative law judges spending majority of time in removal issues
formerly known as deportation/exclusion and exercise discretion.
• Trial attorneys under the former INS usually become immigration judge. Wong Yang
Sung held that S. Ct should terminate the practice of immigration judges being
closely involved in enforcement functions which violated due process to a fair
hearing.
• Thus Congress created fully insulated, quasi-judicial adjudicating officers.

o These judges can issue oral or written decisions, most of which are in loose
leaf publications highlighting the judges’ opinions. Very few written opinions
are est’d as precedent and known as Index Opinions. Due to severe back
log streamlining regulations allow BIA members to dispose of appeals with
an affirmance or without an opinion (AWO),
o Before being placed in EOIR, immigration judges were answerable to no
one in INS. Today, a different line of accountability provides a (1) better
structural assurance of adjudication neutrality and (2) fosters a strong spirit of
professional independence among judges. EOIR also implemented a set of
uniform rules of practice replacing local customs.
• Executive Office for Immigration Review (EOIR), the umbrella organization
housing BIA (Board of Immigration Appeals), both of which are under the
Department of Justice-DOJ. BIA is entirely a creature of Attorney General and
not recognized by statute.
o BIA decides most cases in 3 member panels and has 15 members.
o Under 8 c.f.r. § 3.1(b), aliens found removable by immigration judges
have a right to appeal to BIA.
o Other types of appeals the board hears stems from decisions relating to
bonds and detention of certain removable aliens, and from decisions
 11

imposing administrative fines and penalties on aircrafts and vessels. 8

c.f.r. § 3.1.(b)(4).
o Board reviews determinations on visa petitions for intending immigrants, but
only if the basis for petition is a family relationship.
o The Attorney General may review BIA’s decision for a final authoritative
decision, but review is rarely invoked and cannot be undertaken by the
alien. But in Re R-A, the AG stated he wanted the issue reviewed in a case
where a woman claimed she was severely battered and wanted to use that
as grounds for could claim asylum in the U.S.
o Review may be undertaken either before or after an initial ruling by board
only if :
• (1) the A/G so directs
• (2) the chairman or a majority of the BIA decides that the case should
be referred
• or (3) when the commissioner requests referral.
o If an examiner denies an application to change from nonimmigrant status
to another-student or tourist-this adjudication is not reviewable.
(a) INS
• No longer exists and most of its employers are located in the Bureau of
Citizenship and Immigration Services (BCIS).
(b) Appeals
Majority of decisions by district offices and rsc are appealable. In such
cases, the INS reviews the appeal, not an immigration judge or the BIA.
A few such decisions are not subject to administrative appeal, but alien may
renew application once removal proceedings have begun, and
immigration judge then considers application de novo, followed by
possible appeal to BIA.
Internal appeals go to the AAU (the administrative appeals unit) which is
staffed by appellate examiners, not attys.
Generally, appeals of removal orders issued by an immigration judge go
through BIA.
(c) Other units
IRCA created a system of Employer sanctions to penalize those who
IMMIGRATION knowingly hire undocumented aliens or fail to perform certain
REFORM AND documentary verification before any hiring-INA § 274(a). To assure that
CONTROL ACT- this system did not increase discrimination against minorities, IRCA
IRCA added new provisions barring discrimination based on national origin or
citizenship status-- INA § 274(B)(a)(1)(A), pg 373
Under the statute, allegations of Employer violations of either provisions are
heard by an Administrative Law Judge (not immigration judge). Thus, the
DOJ added a new unit to EOIR – the Office of Chief Administrative
 12

Hearing Officer (OCAHO) who supervises the ALJ’s carrying out this
function.

(2) DEPARTMENT OF STATE

Visa issuance falls under the general responsibility of Bureau of Consular Affairs,
headed by Assistant Secretary of State.
National Visa Center, in New Hampshire, checks visa requests for accuracy and
completeness, creates immigrant visa files and computer records, and mails
necessary notices and requests for info to applicants or their attorneys, even
when actual visa will be issued at consular post abroad.
In addition to visa services, the Bureau has 2 other major divisions, passport
services for US citizens and overseas citizens services.

(B) OTHER FEDERAL AGENCIES

(1) Department of Labor

Comes into the picture when a visa for employment-based preference in the US
is sought.
DOL, through its employment and training administration, must certify that US
workers in applicant’s field are unavailable in locality of applicant’s destination
and that applicant’s employment will not adversely affect wages and working
conditions of American workers.
If certification is denied, Employers may appeal to Board of Alien Labor
Certification Appeals, a panel consisting of 7 ALJ's.

(2) United States Information Agency

USIA has responsibility for the U.S. govt.’s overseas information, educational
exchange, and cultural programs, mainly done abroad, through information
and public affairs officers in U.S. diplomatic missions, the voice of America
radio service, and a variety of other videotape and film distribution networks.
E.g. Fulbright program is an educational program bringing several thousand
foreign nationals here each year.

(C) RESTRUCTURING

• Issues concerning the restructuring of the INS are

1) Whether the INS should be under a different department than the
DOJ or
2) Whether the INS should be a cabinet level office itself
• Argument to make INS a different cabinet
1) Elevates the importance of immigration issues
2) By doing so, you could separate out the service and enforcement
of immigration
• Argument against making INS a different cabinet
1) Separating out services and enforcement would unevenly
appropriate funds and resources to enforcement groups.
2) Not clear what difference making the INS a different cabinet would
make.
 13

(D) COURTS

Before 1961, no immigration statute expressly permitted judicial review of exclusion and
deportation orders, or of other gov’t decisions in immigration cases. Courts took
jurisdiction b/c exclusion and deportation requires that gov’t eventually takes the
alien into physical custody. This allowed for judicial review in federal district courts
via a writ of habeas corpus.
Next milestone was adoption of Administrative Procedure Act. With subsequent
enactment of INA in 1952, declaratory and injunctive relief became available under
APA to test deportation and exclusion orders w/o physical custody requirement.
In 1961, Congress restructured judicial review. Former INA § 106 established the basic
scheme that prevailed until 1996. In 1996, INA § 242 replaced § 106. An alien may
appeal removal order to federal court of appeals and sets out procedural
requirements with regard to deadlines for filing, venue, and service. Most
significantly, however, the new §242 limits the role of the courts in several ways.

Judicial 1) §242 eliminates judicial review in broad categories of cases. E.g any
Review final removal order against an alien deportable under most of the crime-
§ 242 related deportation grounds shall not be subject to review by any court.
o Also specifically barred is judicial review of major categories of
discretionary decisions: concerning certain waivers, relief from
removal, and discretionary adjustment to permanent resident status.
2) Where judicial review is still available, §242 establishes deferential review
standards.
3) 1996 act generally strengthens the statutory preference for consolidating
judicial review by deferring it until gov’t action is reduced to a final
removal order against an individual alien.
4) Scope and standard for review allows review when a reasonable
adjudicator finds admin findings inconclusive, or admission denial is
manifestly contrary to the law or under abuse of AG’s discretionary
judgment. INA pg 303
 14

(III) ADMISSIONS; CATEGORIES; GROUNDS OF INADMISSIBILITY

Ch. 4 p. 265-452
American immigration system allows for the admission of two broad categories of aliens: immigrants and
nonimmigrants. Noncitizen in either group must show he qualifies for admission and that none of the multiple
grounds for inadmissibility in §212(a) renders him ineligible.
§201- Worldwide level of immigration; p. 54
§203- Allocation of immigrant visas (numerical limitations); p. 62
§204- Procedure for granting immigrant status; p. 75
§245- Adjustment of status of nonimmigrant to LPR; p. 319
Immigrants – seek to take up permanent residence noncitizen authorized to take up
permanent residence in the U.S. After admission are often referred to as LPR’s
(lawful permanent residents), until they obtain citizenship through naturalization.
They may stay as long as they wish provided they don’t commit crimes or other post-
entry acts that render them deportable. No obligation to apply for citizenship. LPR
can stay indefinitely.
most Ame immigration begins w/ visa petition filed by person already in U.S. usu a
family member/prospective employer (petitioner) whose relation to noncitizen
(beneficiary) will become basis for noncitizen’s proof he fits w/i a qualifying
category
Within the immigrant classification, there are four categories, each regulated with intricate
rules:
1) Family sponsored immigrants
2) Employment based immigrants
3) Diversity immigrants
4) Refugees

Nonimmigrants – enter for a specific purpose during a temporary stay.

(A) IMMIGRANTS

(1) FAMILY-SPONSORED IMMIGRANTS/ PREFERENCES

§201(c) sets floor for fam-sponsored pref categories- minimum 226,000 admissions/yr
§201(c)(1)(B)(ii); p. 56. §202; p. 58- per-country ceilings (applies only to preference
immigration in empl and fam categories) §202(a)(5); p. 60
Aliens who obtain permanent residence in the U.S. based on a family relationship
qualify either as

a) Immediate Relatives of U.S. Citizens, or

Under §201(b)(2)(A); p. 55.

Principal “immediate relative” is defined to include spouses and children, and

Alien if the petitioning citizen is over 21, parents as well.
definitions: §101(b)(1); p. 41: child- must be under 21 and unmarried,
incl stepchildren and legitimated children, if qualifying relationship
was established before child reached 18, and incl adopted
children if adoption occurred before 16; §101(b)(2); p. 43: parent-
depends on relationship to a “child,” not ineligible if son/daughter
is now over 21 or married, provided relationship was estab while
offspring was still “child”
 15

No quotas apply to immediate relatives. All who meet the

qualitative requirements by showing the requisite family
relationship qualify, making it the most favored of all immigration
categories.
No per country ceilings either.
b) Under one of the 4 preferences assigned to family reunification
Under §203(a); p. 62- (subj to annual numerical ceilings), immigrants
are considered for immigration according to their priority date, the
date that one’s petition was filed and determines their position on
the waiting list. Conversion: if one becomes ineligible under their
pref category, they can still retain the same original priority date
when they move to their new category.
Aging out: for imm relative petitions child’s age is deemed age at time
parent files petition. If petition began as 2nd pref petition but
converts to imm relative b/c parent naturalizes child’s age on date
of naturalization is what counts §201(f); p. 57; usu moves child up,
but see §204(k); p. 85. Age of child is reduced by period of time
spent while petition was pending- beneficiary must apply for visa
or adjustment w/i one yr of date when category becomes current
or lose benefit of anti-age-out rules §203(h); p. 74.

PREF. FAMILY SPONSORED APPLIES TO

# PREFERENCE [INA § 203 (A); P.
62]
First 23,400 admissions for unmarried
S&D of U.S. citizens
Immediate relatives
2nd Minimum of 114,200 admissions
annually, of the spouse and
unmarried S&D’s of lawful
permanent resident aliens
Immediate relative of LPR
Third 23,400 admissions for married S&D
of U.S. citizens, those who cannot
qualify, b/c of marital status (and
perhaps age), for the immediate
relative category, or for the first
preference
For those who are not immediate
relatives, e.g. Stepchildren,
adopted children
Fourth 65,000 admissions each year for
brothers and sisters of U.S.
citizens.
For unmarried children of U.S. citizens. They can also come in as
immediate relatives without quota limits (nec if +21).
Spouses and unmarried children of LPR’s. Higher % to spouses and
minor children
Use this preference for spouses acquired after one has become
an LPR
Note: LPR’s qualify for naturalization, in most cases, after 5 years of
residence in the U.S..
Married children of U.S. citizens who do not fall under preference 1 or
2.
To avoid the separation of nuclear families, §203(d); p. 73 (also
applies to employment and diversity imm) provides that the spouse or
child (derivative beneficiaries) of a S&D of a U.S. citizen (the principal
alien) may be admitted in this same preference category and in the
same order of consideration (at the same spot on the waiting list) as
the principal alien. Noncitizen “following to join” principal. Thus, the
husb and child of a woman who falls under this category don’t have to
wait until she successfully petitions for them under 2nd pref. Admission
charged against ceiling for principal’s pref category.
§203(d) Does not apply to after acquired spouses/children- they must
use 2nd pref. Or immediate rels of U.S. citizen.
Brothers and sisters of U.S. citizens. INA definition of “child” used to
decide whether sibling relationship is satisfied.
Siblings of adopted children do not qualify
 16

CONSTITUTIONAL STANDARDS FOR EVALUATING ADMISSION CATEGORIES

The preference categories and other provisions of the INA governing immigrant admissions
inevitably draw a host of fine distinctions among categories of aliens who might wish to immigrate
to the U.S. Much room is left to dispute the fairness and desirability of such distinctions. For
example, is it fair to hold China to the same country ceiling as Belize? Why should marriage
disqualify the offspring of permanent resident aliens?

S. Ct. considered these matters in the following case that presented a challenge to the definition
of “child” in INA § 101(b)(1)(d); p. 41 as it read before the amendment in 1986. At the time of the
decision, the statute recognized only the relationship between the illegitimate children and their
natural mothers, excluding such relationships with the natural fathers.

Judicial inquiry into immigration legislation is limited. Court has repeatedly emphasized
that Congress has the sole and absolute power concerning the admission of aliens and
that there is limited judicial responsibility to review Congress’ line-drawing. See Fiallo v.
Bell.

Fiallo v. Bell (USSC)

INA statute as written (since amended) defined parent upon their relationship with the
child and defined child in relation to the mother only. Result was that father of
illegitimate child who is either a U.S. citizen or LPR was not entitled to special
treatment as a parent.
Court held that the statute was not unconstitutional by virtue of the exclusion of the
relationship between an illegitimate child and his/her father
Judicial inquiry into immigration legislation is limited, need we remind you…
court has repeatedly emphasized that Congress has the sole and
absolute power concerning the admission of aliens and that there is
limited judicial responsibility to review Congress’ line-drawing.
Appellants argument that the statute places a stronger restriction on fathers
and illegitimate sons than it does on legitimate sons and parents or on
illegitimate sons and mothers is one we cannot address because the
decision to do so was one outside of courts to control.
There is an inherent difficulty of determining the paternity of illegitimate
children and Congress may have well given such difficulty weight when
they adopted the challenged classification. There is a potential problem
of fraud and proof.
This was amended under INA 101(b)(1)(D).
(a) IMMIGRATION BASED ON MARRIAGE
Immigration policy and administrative agencies have defined marriage for the purposes of
immigration benefits and precluding fraud.
Marriages that may be valid in the country of origin may not be recognized for
immigration purposes if they are deemed to conflict with public policy, which is
generally understood to mean that the marriage must be lawful in the intended place
of destination in the U.S.
Same sex marriages recognized by a foreign country or state are not recognized
by the INS.
 17

♦ In 1996, Congress enacted the Defense Of Marriage Act which

includes a section that provides that “in determining the meaning of any
act of Congress or any ruling, regulation, or interpretation of
administrative agencies, the word marriage means only a legal union
between one man and one woman as husband and wife and the
word spouse refers to a person of the opposite sex who is a
husband or wife.”
Note that many of the following cases come from the 9th Cir. that has been called the
second most powerful court in the nation, often looked at as a renegade court, and
often makes decisions that the S. Ct. loves to reverse. A commission was chartered
by Congress in 1988 with a proposal that the 9th Cir. be divided up so that it would not
be so much a renegade court. It never occurred. Thus, when you look at 9th Cir.
decisions, always ask whether the decisions are mainstream or is likely to be
reversed by the USSC.

Same sex marriages recognized by a foreign country or state are not recognized
by the INS.
Adams v. Howerton (9th Cir.)

Adams v. Howerton (9th Cir.)

Adams is about a person that was in the U.S. on a nonimmigrant visa who
married a U.S. citizen and then wanted to adjust their status as an LPR.
Such a situation is a concern of the INS b/c of the risk of fraud and sham
marriages. Adams, a male citizen, and Sullivan, a male alien, appeal
from the d. Ct’s entry of summary judgement for the acting director of the
INS, who denied the immediate relative status preference classification in
the application.
Argument that the statute does not exclude gays:
♦ Statute makes not reference to gays and Congress had time to
make changes to the statute.
♦ Statutory construction: ordinary meaning of spouse is not sexual
orientation specific
♦ Purpose of family laws is to allow for the reunification of families
♦ Issue is not the regulation of immigration but the regulation of
marriage and this is a state issue. Co has a state law allowing marriage
and ins is interfering.
♦ Chevron doctrine: statute is not clear and INS’s interpretation is
unreasonable
Court held that the marriage was not recognized by the INS as endowing an
immediate relative status.
♦ 9th Cir. conducted a two step process
1) Whether the marriage is valid under state law
2) Whether the state approved marriage qualifies under the
act.
♦ Co law did not condone or prohibit same sex marriages but the
court said that even assuming that it did, the marriage did not qualify
under the act b/c
 18

1) Congress did not intend the mere validity of state law to be

controlling since the act itself limits who may fall under “spouse” by
excluding proxy marriages
2) Nothing in the act’s legislative history suggests that the
reference to spouse included a person of the same sex as the citizen
in question and marriage, in its ordinary common meaning means
marriage between opposite sexes.
(b) SHAM MARRIAGES
Because INA § 201(b); p. 54 says that immediate relatives are not subject to
limitations, sham marriages are an attractive option to immigrating to the
U.S.
As a result, the INA does not recognize proxy or sham marriages,
marriages “where the contracting parties thereto are not physically
present in the presence of each other, unless the marriage shall
have been consummated.” § 101 (a)(35) p. 35.
Ins has sought to deny visa petitions for alleged spouses in two distinct
situations:
1) When the underlying marriage is a sham or fraudulent such that the
parties did not intend to establish a life together at the time they were
married
Evidence of separation, standing alone, cannot support a finding that a
marriage was not bona fide when entered. (Bark v. Ins)
Bark v. Ins (Ct. App. 9th Cir. 1975)
Appellant and his wife were sweethearts in Korea. She immigrated to the
U.S. and became a resident alien and he came to visit as a business
visitor and then as a student. They renewed their acquaintance and got
married in Hawaii. She filed a petition on his behalf to qualify him for
status as the spouse of a resident alien pursuant to § 203(a)(2); p. 63 and
§ 204; p. 75 of the act. Petitioner thereafter filed his own application for
adjustment of status under § 245; p. 319 of the act. He was denied
adjustment of status from student visitor to permanent resident on the
immigration judge’s conclusion that the marriage was a sham based on a
separation. The BIA affirmed, finding that the wife and husband lived in
separate quarters.
Court reversed and remanded.
♦ Marriage is a sham if the bride and groom did not intend to
establish a life together at the time they were married.
♦ Conduct of the parties after they are married is relevant only to
the extent that it bears upon their subjective state of mind at the time
they were married. Their separation alone cannot support a finding that
the marriage was a sham.
♦ Court concluded that the immigration judge and the BIA did not
focus on the key issue: whether they intended to establish a life together
at the time of their marriage.
2) When the underlying marriage is a noviable, or “factually dead” at
the time when the immigration benefit is sought
 19

Courts have rejected such an argument by the INS on the grounds that
the INS has no expertise in the field of predicting the stability and
growth potential of marriages. According to the 9th Cir. in
Dabaghian, if a marriage is not a sham or fraudulent from its
inception, it is valid for purposes of determining the eligibility of
adjustment for status until the marriage is legally dissolved. Thus,
the 9th Cir. ruled in 1979 that the INS cannot rescind LPR status.
Dabaghian v. Civiletti (Ct. App. 9th Cir. 1979)
Dabaghian sought LPR status after marrying a U.S. citizen. It was granted
on the date where there was no evidence to show that he was separated
from his wife, but 16 days later, he filed for divorce, which was granted 7
months later. He remarried an Iranian citizen. Ins sought to revoke his
status on the ground that the marriage was factually dead at the time the
adjustment was granted.
Court rejected the INS’ legal position.
♦ Discussed Bark
♦ Court said that eligibility turns on whether he was the
spouse of an American citizen at the time of adjustment of status.
♦ “spouse” in the act includes all parties to all marriages that
are legally valid and not a sham. There is no exception for
marriages that the INS thinks are factually dead in the statute.

7 years after the Dabaghian case, Congress passed the IMFA that allows the INS
to rescind a status change that had occurred while a LPR on a conditional
status.
Moreover, courts will still scrutinize evidence of current separation in order to
determine whether the initial marriage was sham or fraudulent. The BIA
has also stressed that petition may not be granted on the basis of
marriages legally terminated as of the date that the immigration benefit is
to be conferred.

In order to deter and detect fraud marriages more effectively, Congress adopted the
Immigration Marriage Fraud Amendments of 1986 (IMFA)

Under the IMFA, INA § 216; p. 197, all persons who obtain lawful permanent resident
status based on a marriage that is less than 2 years old at the time receive such
INA status “on a conditional basis.” The conditional period lasts 2 years, unless INA acts
§216 before that time to terminate the alien’s resident status. However, the conditional
status counts fully toward the necessary residence period for naturalization. §216(e)
p. 202.
Within the last 90 days of the 2 year period, both spouses must take the initiative to
petition the DHS to have the conditional status removed, although under certain
circumstances the alien may secure a waiver to the requirement of a joint filing.
§216(c)(4) p. 199 (if waiver sought, alien bears burden of proof)
DHS has clear statutory authority to call both spouses for an interview at this point,
although in interview is usually waived, thus reserving the examiner’s time for those
cases where the papers raise a question meriting further inquiry. 8 C.F.R. § 216.4 p.
741, 216.5 p. 744.
 20

You need a joint DHS removes the conditional basis at the end of the 2 years if it find that the marriage
petition to have the was valid and has not ended. Removal signifies that the alien has graduated to full
conditional status permanent resident status. INA §216(c) p. 198, (d)(1) p. 200. Note that the actual
removed by the
DHS if the spouse
time frame we are talking about is ~6 years. It takes 2 years to actually be
is not a victim of considered for conditional basis status. Then you wait another 2 years before you
domestic violence can petition to have the conditional status removed. Then, it takes another 2 years
for the removal status to be processed. During all of this period, the person who is
an LPR on a conditional status has “no status” status.
DHS, however, can If DHS finds that the underlying marriage was improper or has been judicially annulled or
terminate the
conditional status terminated §216(b)(1) p. 198, (you can be terminated for failure to file a timely
and deport removal petition §216(c)(2)) p. 199, the DHS can terminate the permanent
resident status and the person is deportable under INA §237 (a)(1)(D) p. 257.
If removal of conditional basis I denied at end of 2 yr period, noncitizen, becomes
deportable. If the person seeks reconsideration in the deportation proceedings, the
DHS has the burden of proof and must meet a preponderance of the evidence
standard on most such issues §216(b)(2) p. 109, (c)(2) p. 199, (c)(3) p. 199.
IMFA also used to tighten other provisions meant to prevent and punish marriage fraud:
(K category) nonimm fiancé(e)s §§214(d) p. 181, 245(d) p. 320; strengthened
restrictions on future imm of persons who have been involved in marriage fraud
§204(c) p. 81; estab crim sanctions for involvement in marriage fraud §275(c) p. 394;
made it more diff for person who immigrated on basis of 1st marriage to bring in 2nd
spouse following divorce from 1st (must wait 5 yrs since granting of L.P.R. status, or
prove by clear and convincing evid to A.G. prior marriage wasn’t entered into for
purpose of skirting immig laws §204(a)(2) p. 80; rendered it more diff for noncitz in
deportation proceedings to cure probs by 11th hr marriages entered into while
deportation proceedings were pending §§204(g) p. 84; 245(e) p. 320 marriage
cannot be basis for adjustment here unl noncit prove genuineness of marriage by
clear and convincing evid.
see also §§ 204(c) p. 81 , 245(e) p. 320.
§216(c)(4)(A)-(B) p. 200: waiver for “extreme hardship,” “good faith/not at fault-” judge
has discretion to grant or not grant. Cases where alien spouse wasn’t at fault for
marriage failing, but purpose of giving immigration benefit to alien spouse is to keep
family together- immig benefit lost was only made b/c of marriage to U.S. citizen or
resident- no reasb justification for special immig benefit to continue if marriage failed.
Sometimes children from prior marriage of noncitz spouse also get conditional P.R.
IMFA also includes a new waiver for domestic abuse- re: self-petitioning
1) For battered spouses who had already been granted conditional status
and §216(c)(4)(C) p. 200.
2) For a battered spouse who is eligible for family-based immigration based
on marriage to file a petition on her own behalf for LPR status. (extreme mental
cruelty as a reason for the waiver must be certified by an expert to prevent from
fraud.)
3) VAWA amends: §§204(a)(1)(A)(iii), (A)(iv), (A)(v), (B)(ii), (B)(iii), (B)(iv)
p. 75-76- to protect abused noncitz spouse; §204(a)(1)(C) gives examiner
discretion to find petitioner possesses good moral character despite certain
criminal convictions, if crim act was connected to alien’s abuse/extreme cruelty,
See also §§212(a)(6)(A)(ii) p. 122; 212(a)(9)(B)(iii)(IV) p. 127; 212(a)(9)(C)(ii) p.
128 , 237(a) p. 256.
(c) SIBLINGS
 21

Siblings of adopted children do not qualify as brothers or sisters under the fourth
preferential status of family sponsored preference. Young v. Reno

Young v. Reno court skillfully used statutory construction under the doctrine that
the “expression of one thing is the exclusion of another” and demonstrated
once again that there is limited judicial responsibility to review Congress’
line-drawing.

Young v. Reno
Karen young was adopted as a child by a paternal aunt in Hong Kong and was permitted
to immigrate to the U.S. b/c of this parent-child relationship. In 1984, she sought
preferential status on her four biological siblings, pursuant to §203(a)(4) p. 63 of the
INA. Ins approved the petitions and forwarded them to the state dept. Consulate in
Hong Kong and when visas finally became available for 4th preference individuals
with 1984 priority dates, her siblings applied for immigration visas. The consulate
returned the petitions to the INS for visa relocation proceedings, explaining that the
petitions should not have been approved b/c the adoption severed the relationship
Karen had with her biological siblings.
Court held that the INS interpretation was reasonable under the chevron doctrine.
INA prevents a natural parent from receiving immigration privileges through
an adopted child. INS’s interpretation of the INA was that because
natural parent no longer has the status of parent under the act, the legal
relationship between adopted child and natural sibling also ceases. They
no longer have a common parent for immigration purposes.
Court first concluded that Congress had not spoken on the precise question
at issue - whether the natural relationship between natural siblings would
survive adoption.
Neither the plain language of the statute nor the failure by Congress
to exclude preferences for natural siblings after adoption
indicates that Congress clearly intended that the natural sibling
relationship should survive adoption for immigration purposes.
Legislative history further indicates that when Congress adopted
these provisions, it was not concerned with whether the legal
relationship between natural siblings would survive adoption.
Before the enactment of § 101(b)(1) p. 41, the definition of child
did not include adopted children. Thus, the focus was on the
unification of adoptive, not natural, families. No indication that
Congress’ intention extended to natural siblings of adopted
children.
Court then concluded that the INS’s interpretation was a permissible
construction of the statute.

(2) EMPLOYMENT-BASED IMMIGRATION

§203(b) p. 63
vast majority of noncitizens approved for employment-based visas are skilled workers,
usu members of a profession.
 22

primary concerns are adversely affecting wages and working conditions of U.S. workers;
law essentially presumes foreign workers aren’t needed- noncitz and her employer
must take initiative to get certification.
Formal employment based immigration system is structured with the domestic labor
market very much in mind. To protect the American worker, an Employer seeking
the services of immigrants who enter under the employment-based categories must
first: DOL certifies this

Obtain a labor certification by demonstrating:

INA § 1) That there are no domestic workers available to perform such work and
212(A)(5)
2) That the entry of the alien will not adversely affect the wages and working
conditions of similarly employed US Workers §212(a)(5)(A)(i) p. 119.
PREFERENCE ORDER INA § 203(B) p. 63
FIRST PREFERENCE 40,000 numbers for priority workers, a category that is further subdivided to
immigrants include:
(1)aliens with “extraordinary ability” in the arts, sciences, education, business, or
Priority workers athletics- requires documentation of sustained natl/intl acclaim
(2)outstanding professors or researchers
(3)certain multinational executives and managers [defined in INA §101 (a) (44) p.
39].
*Employer must initiate the petitioning process, unless the alien is of
extraordinary ability §204(a) p. 75.
*Employer need not show that there are no domestic workers available to perform
services that they will undertake in the U.S. b/c such immigrants supposedly have
talents beyond compare or that their contributions to the U.S. are so manifest that
their entry is desirable whether or not they compete with domestic talent.
SECOND PREFERENCE Provides roughly 40,000 admissions for professionals holding advanced degrees
immigrants “or their equivalent” or who “because of their exceptional ability in the sciences,
arts, or business, will substantially benefit prospectively the national economy,
cultural or educational interests, or welfare of the U.S.”. An Employer must seek
Exceptional workers
their services, unless this requirement is waived by the A/G in the national interest.
*Employer must initiate the petitioning process by obtaining a labor
certification under INA §§ 204(a)(1)(D) p. 79, 204(b) p.81, 212 (a)(5)(A) p. 119;
unl alien is given a natl-int waiver
THIRD PREFERENCE Professionals having only baccalaureate degrees, and for skilled and unskilled
immigrants workers who would fill positions for which there is a shortage of American workers.
Roughly 40,000 admissions are available for this preference each year. In the
debates on the 1990 act, it was resolved that no more than 10,000 unskilled
skilled workers
workers may be admitted each year.
*Employer must initiate the petitioning process by obtaining a labor
certification under INA §§ 204(a)(1)(D) p. 79, 204(b) p. 81, 212 (a)(5)(A) p. 119.
FOURTH PREFERENCE With about 10,000 annual admissions, this preference is for special immigrants as
immigrants defined in INA §101 (a)(27)(C)-(J) p. 30-33. These categories include religious
workers, former long time employees of the U.S. govt. Or of international
organizations, and a host of other miscellaneous provisions, used to exempt from
Special immigrants
numerous ceilings, but demand is expected to remain below 10,000 for the
foreseeable future.
*alien can petition herself §204(a) p. 75.
 23

FIFTH PREFERENCE § 203(b)(5)Provides 10,000 numbers for investors whose investments will create a
immigrants minimum of 10 jobs in the US economy. The baseline minimum investment is
$1,000,000, but the required amount is lowered if the investment is in a rural area
or a high unemployment area, and it is increased if the business is established in
investor visa
an area with low unemployment. Concerned about possible fraud in this category,
Congress provided that fifth preference immigrants will initially receive only
conditional permanent residence status, under procedures that are designed to
result in a careful review of the investment after two years § 216A p. 203. §275(d)
p. 394 criminalization of imm related to entrepeneurship fraud. Must be a new
commercial enterprise
*alien can petition herself §204(a) p. 75
 24

(a) Labor certification process

Purpose is to protect the American worker- estab that shortage of available/qualified
workers exists in noncitz’s field. If imm is entering under fam-pref doesn’t matter if
they are intending to work here.
EMPLOYER FIRST LOOKS TO SEE IF ALIEN FALLS INTO ANY OF THE
FOLLOWING SCHEDULES
(a) Schedule A
lists occupations judged chronically short of qualified U.S. workers.
Includes only licensed nurses and physical therapists, and certain aliens of exceptional
ability in the sciences of the arts (except performing arts).
A qualified alien seeking to come to the U.S. in these occupations can avoid processing
at the DOL altogether. He may file papers directly with the consular officer overseas
w/ visa petition, or with the INS if the applicant is already in this country and seeks
adjustment from nonimmigrant to immigrant.
(b) Schedule B
Lists occupations in which the DOL considers there are sufficient us workers throughout
the country and for which a labor certification will not be issued
Includes bartenders, parking lot attendants, cashiers, keypunch officers, truck drivers,
and many others. Provisions for waivers, but they are rare.

IF THE ALIEN’S OCCUPATION DOES NOT APPEAR ON EITHER SCHEDULE, THEN

THE EMPLOYER MUST INITIATE THE INDIVIDUAL CERTIFICATION PROCESS
BY FILING FORM ETA 750 AND DEMONSTRATING THAT THE MANIFOLD
REQUIREMENTS FOR INDIVIDUAL LABOR CERTIFICATION HAVE BEEN
FULFILLED.
20 C.F.R. §§ 656.20-656.21. p. 810
1) Emp must show that he has engaged in good-faith recruitment efforts aimed at qualified
us workers, including detailed advertising requirements;
§ 656.21(b)(2) p. 817 requires that the Emp shall document that the job opportunity has
been and is being described without unduly restrictive job requirements:
The job opportunity’s requirements, unless adequately documented as arising
from business necessity
(a) Shall be those normally required for the job in the U.S.
(b) Shall be those normally required for the job in the dictionary of
occupational titles including those for subclasses of jobs
(c) Shall not include requirements for a language other than English.
To not be unduly restrictive, E must pass the BUSINESS NECESSITY 2 PRONG
TEST as held in Information Industries:

1) There is a reasonable relationship between the job requirements and the

occupation, and the job relationship is relatively easy to satisfy
2) E has shown that the job requirements are essential to perform, in a
reasonable manner, the job duties.
2) ER must show that it has interviewed interested U.S. workers and has rejected
any such applicants for lawful, job-related reasons
 25

3) ER must show that it has offered prevailing wage as defined in 20 c.f.r. § 656.40
p. 835 and is capable of paying that wage
4) if certification is denied, employer may contest and file additional info- entitled to
admin review, before panel of Board of Alien Labor Cert Appeals of DOL
5) Reduction in Recruitment (RIR)- streamlined process. To qualify employer must
demonstrate app is for occupation for which little/no availability of potential employees,
no restrictive reqs, prevailing wage, conducted adequate recruitment for 6 mos. Frees
employer from mandatory 30 day recruitment.
6) National interest waivers §203(b)(2)(B) p. 65. allows AG to waive req that 2nd pref
imm’s services be sought by employer in U.S. when waiver is deemed ini natl int. Also
exempts imm from labor cert. 8 C.F.R. § 204.5(k)(4)(ii) p.616. Three prong test: (1)
employer must show imm working in area of substantial intrinsic merit (2) benefit will be
natl in scope (3) alien will serve natl interest in much greater degree than would available
U.S. worker w/ same min qualifications. For Drs. §203(b)(2)(B)(ii) p. 65.
Information Industries
Information industries was a nationwide computer consulting business headquartered in
co. Ii has applied for labor certification and listed the duties in highly technical terms.
The certifying officer (co) denied the labor certification on the ground that the
application had not met the requirement that the job description not be unduly
restrictive. E filed a rebuttal on the ground that the requirement of 2 degrees was not
unduly restrictive but were normal for such a job in the U.S.. E appealed to the
board of alien labor certification appeals (balca)
Held that to establish business necessity under § 656.21 (b)(2)(i), an e must
demonstrate the job requirements bear a reasonable relationship to the
occupation in the context of the E’s business and are essential to perform, in a
reasonable manner, the job duties as described by the e. (business necessity
2 prong test)
E cannot obtain labor certification by showing that the job requirements merely tend to
contribute to or enhance the efficiency and quality of the business.
Job requirements advertised conform to the dot of a systems engineer, but it is not clear
that the requirements are normal for this job of systems engineer or that that is the
correct title.
♦ Neither party attempted to analyze the job requirements in terms
of the job duties. The e has not explained which job duties require its
systems engineers to have a bs in engineering and the co has not
explained why this degree, or a ma in computer science, are not bona
fide requirements for this position regardless of which title best suits it.

Muni v. INS
• Canadian hockey player
• Held INS abused its discretion by denying P’s visa by improperly concluding he wasn’t
alien of extraordinary ability under §203(b)(1)(A)(i) b/c failed to consider supporting
evid and failed to explain why evid presented was insufficient to estab P’s
extraordinary ability.
• stand of review is abuse of discretion and INS abuses when decision is made w/o
rational explanation, inexplicably departs from estab policies, or rests upon
impermissible basis such as race descrim.
 26

• INS ignored affidavits submitted estab P was a superior player and evid submitted.

(B) NON-IMMIGRANTS
Non-immigrants are aliens who seek entry to the U.S. for specific purposes to be accomplished
during a temporary stay. Qualifying categories §101(a)(15) p. 19.
• §214(b) p. 174: presumption noncitizen is attempting to immigrate. Noncitizen must prove
entitled to nonimmigrant status.
Nonimmigrant categories include:
(a) Tourists (granted 6 month entry period) b-2 visa
(b) Students f-1 visa
(c) Student spouses f-2 visas
(d) Business related categories b-1 visa
(e) Diplomats and employees of foreign governments or affiliated with international
organizations

There are no fixed numerical limits on nonimmigrant admissions, except in the h-1b and h-
2b categories. Control over nonimm admission regulated by applying reqs for each category and
inadmiss grounds in §212(a) p. 107.
• most noncitizens need visa (doesn’t guarantee admission), but citz of some countries can
come for up to 90 days w/o visa as business visitor or tourist. If lawfully admitted as nonimm
can try to change to different nonimm status under §248 p. 342.

Most important requirement for admissibility is that the alien has a residence in a
foreign country which he has no intent of abandoning. INA § 101(a)(15)(B),
(F),(J) p. 20-23. In deciding whether to issue nonimmigrant visas, consular
offices are wary of a country’s reputation for a high incidence of visa
abuse.

An alien is not a bona fide nonimmigrant if his or her intent from the beginning is
to remain in the U.S. permanently by any means possible, legal or
otherwise. However, under the dual intent doctrine, a desire to remain in
this country permanently, in accordance with law, should the opportunity
present itself, is not inconsistent with lawful nonimmigrant status. Matter
of Hosseinpour.
Matter of “Dual Intent”

FOREIGN STUDENTS IN THE UNITED STATES

 27

• 3 avenues for students from other countries to come to the U.S.

TYPES OF STUDENTS VISAS

(1) F VISA
• admitted as a nonimmigrant for the period of the program of study, referred
to as the duration of status
• requires that the student have a foreign residence that they have no intention
of abandoning
BUSINESS AND ENTREPRENEURIAL NONIMMIGRANTS
Admission under tourist and student nonimmigrant visa are fairly straightforward and
usually do not demand the attention of an atty. Business categories, however, are
more complex and typically necessitate legal counsel for their successful navigation.
Why you need nonimmigrant categories for business and not seek entry as an
immigrant  b/c employer may need workers only temporarily and going through
labor certification would be timely, expensive, and backlog other visa categories.
Also, employer may need workers immediately, but it takes time to process labor
certification.
TYPES OF BUSINESS AND ENTREPRENEURIAL NONIMMIGRANT VISAS:

(2) H-2A VISA – TEMP. AGR. WORKER

• Temporary worker program for agricultural needs of U.S.
• To bring in H-2A agricultural workers, an emp must first file a labor
certification application with the DOL, to show that he has satisfied the
requirements of INA §218(a)(1) p. 221that:
(A) There are not sufficient workers who are able, willing, or qualified, and
Temp. Agr. who will be available at the time and place needed, to perform the
Workers agricultural labor or services involved in the petition, and
(B) The employment of such alien in such labor or services will not adversely
affect the wages and working conditions of workers in the U.S. similarly
employed.
• If the labor certification is granted, next the emp must have a petition
approved by the BCIS before the individual workers can obtain visas for
entry.
• see § 218(b)(4) p. 222
• § 218(c)(4) p. 225. Workers must be provided with free housing that
complies with federal and local standards, meals or convenient cooking
facilities, return transportation, and workers compensation or the equivalent.
• They have been on the decline in recent years.

(3) H-2B VISA – TEMP NON-AGRIC. WORKER

Fixed Numerical
Limits in place for
these two
• Temporary worker program for all other nonagricultural fields.
• Available only if unemployed persons capable of performing such service
or labor cannot be found in this country. See § 214(c) p. 175: instructs A.G.
to consult w/ appropriate Govt agencies to see if U.S. labor is available.
• Alien must be entering temporarily to fill a temporary job (a year or less)
• requires that petitioning Employers have certification from the DOL that
qualified person in the U.S. are not available and that the alien’s employment
will not adversely affect wages and working conditions of similarly employed
us workers.
 28

• H-2B nonimmigrants are admitted for up to a year at first with one year
extensions possible up to the a maximum of 3 years. 8 C.F.R. §212(h)(9)(iii)
(C) p. 711 (h)(15)(ii)(C) p. 716.
• Limited to a maximum of 66,000/yr. §214(g)(1)(B), (g)(2) p. 184.

(4) H-1B VISA – SPECIALTY OCCUPATION CATEGORY

• H-1B classification covers aliens coming temporarily to the U.S. to
provide services in a “specialty occupation.” See INA § 214(i) for
definition of specialty occupation. p. 187.
• Definition of specialty occupation is that it requires the equivalent
of a bachelor’s degree or higher degree in the specialty
• “equivalent” may include a high level of experience
• Alien applying for H-1B visa must demonstrate that she is
qualified to work in a specialty occupation. Usually shows by possession
of requisite college degree but can also be shown by licensure or by
experience in the specialty equivalent to the completion of such a degree
and “recognition of expertise in the specialty through progressively
reasonable positions relating to the specialty.” 8 c.f.r. § 214.2 (h)(4)(iii)
(C)(4) p. 685.
• §204(j) p. 85: petition under §204(a)(1)(D) for individual whose
app for adjustment of status pursuant to §245 has been filed and
remained unadjudicated for 180 or more shall remain valid w/ respect to
new job if individual changes jobs or employers if new job is in same or
similar occupational classification as for job which petition was filed.
**benefit only triggered by delays in adj of status, not in lab cert. **prob-
if alien takes new job in new region- no guarantee of protection to U.S.
workers
• E must file a labor condition application (lca) also known as an
attestation with the dol. (DOL approval is not required)
• E must attest that it has notified the appropriate bargaining
representative of its employees of the petition or posted notice of its filing
in conspicuous location at the place of employment.
• E must attest that the job is being offered at the prevailing or
actual wage paid similar individuals and that it will provide working
conditions for the alien that will not adversely affect the working
conditions of similarly employed workers.
• Note that these new rules do not require that the e undertake
recruitment efforts in the U.S.
• E only need show he filed an attestation; DOL approval not reqd
§101(a)(15)(H) p. 22; 212(n) p. 146.
• Attestation requirement continues to draw strong criticism. E’s
argue that they cannot predict what the govt. Will ultimately determine is
the prevailing wage and that they govt. Makes those determinations
neither expeditiously nor accurately. E who makes an incorrect
determination may suffer serious consequences. Also unclear whether
the H1B visa program adequately protects the U.S. worker on the
argument that E’s often fail to either document and/or pay the prevailing
wage to these H1B nonimmigrants, thereby risking the erosion of the
prevailing wage over time.
• H1B nonimmigrants can be admitted for up to 3 years initially, extendible
to a maximum authorized stay not exceeding six years. §214(g)(4) p. 185.
• H1B nonimmigrants are limited to 65,000/year. § 214(g)(1)(A), (g)(2)
p. 184.
 29

ISSUE OF OVERSTAYS COMES UP IN GRANTING H1B VISAS

IRCA
• Purposes and major features of IRCA:
Overstays 1) Legalization of aliens who has performed agricultural labor in the
U.S.
2) Legalize long term undocumented aliens
3) Create Employer sanctions
• If e hires someone who is not legally authorized to work,
sanctions can be imposed on the e. After IRCA, the i-9 has to be
filed for all employees which demonstrates that the worker is a
U.S. citizen. Purpose of enacting the requirement is to ensure
that the job market does not function as a pull factor in illegal
immigration.
4) Protection of U.S. citizens and permanent resident aliens from
employment discrimination occasioned by Employer sanctions
• Undocumenteds tend to concentrate in firms that are in sharp
competition.
• About 41% of all nonimmigrants are overstays. 1% of all
nonimmigrants are h1b’s.

AFL-CIO has proposed creating an amnesty program and legalizing overstays:

Argument for legalizing overstays:
1) E’s exploit overstays b/c they are not legalized.
Argument for not legalizing overstays
1) By creating an amnesty program, you create incentives for
overstaying. Not only will people attempt to get here, but those who
come here are those who know they don’t have to return and will
never return to their motherland.
2) Only reason AFL-CIO wants to create an amnesty program
is b/c their labor unions are facing a decline and by legalizing them,
they increase their membership.

(5) O & P NONIMMIGRANTS VISAS

• §101(a)(15)(O) and (P) p. 24-25. Visas for eligible performing artists and
Artists athletes.
and • O category requires extraordinary ability which has been
Athletes demonstrated by sustained international or national acclaim.
• An alien may come to the U.S. as either an O or P nonimmigrant and at
the same time, lawfully seek to become a LPR.
• no numerical limit

(6) L NONIMMIGRANT VISAS l-1 visas

• For aliens seeking to transfer from a firm overseas to its operations in the
Intra- U.S. Thus they are aka intra-company transferees.
company • Extensively used today by foreign based corporations to transfer
Transfers executive level employees to this country to oversee operations of a
firm’s American branch or subsidiary. However, nothing in the language
of the INA limits the category to large firms or excludes partnerships from
using l visas.
• INA requires that the alien render his services in a capacity that is
managerial, executive, or involves special knowledge. Definitions of
managerial and executive capacity are found in INA § 101(a)(44) p. 39.
 30

• Specialized knowledge is defined as “special knowledge of the

company product and its application in international markets or an advanced
level of knowledge of processes and procedures of the company.” INA §
214(c)(2)(B) .
• An alien seeking L classification must have been employed with the
sponsoring firm for at least one year within the 3 years preceding the
date of his application for entry.
• foreign entity must continue doing business during noncitz’s stay in U.S.
• employer must file prelim petition w/ DHS.
• L nonimmigrants may be granted an authorized stay for up to 1-3
years, extendible to a maximum of 7 years for managers and executives
(and up to 5 years for those with specialized knowledge.) §214(c)(2)(D)
• Not required to have a foreign residence that he has not intention of
abandoning
• L nonimmigrants may legitimately come to the U.S. as an L-1
nonimmigrant and at the same time, lawfully seek to become a LPR
• Concern: Job Shops; where a subsidiary in the U.S.’s sole function is to
supply workers to other U.S. companies as a way to reduce wage costs
since the L visa does NOT require the prevailing wage and also there are no
caps
• Solution: limit the L visa to intra company functions or require the L to
be paid the prevailing wage

(7) E NONIMMIGRANT VISAS E-2 visas

• §101(a)(15)(E) p. 20.
• For either treaty traders (E-1) or for treaty investors (E-2)
• must be an international agreement betw the U.S. and the alien’s country
of origin under whose terms an E nonimmigrant seeks to carry on activities in
this country
• That is, principal alien must be a national of a country with whom
the U.S. has a treaty of commerce and navigation, providing for trade or
investor activity
• Treaty trader must carry on trade of a substantial nature that
is international in scope and principally between the U.S. and the
treaty country
• Treaty investor must have invested or be in the process of
investing a substantial amount of capital in an enterprise which
he or she will develop and direct and which will not be a marginal
enterprise entered into solely to earn a living. Definition of
substantial is found in INA § 101(a)(45).
• Employee of treaty investor must have special qualifications
necessary for the firm’s efficient operation. See INS operations
instructions 213.2(e).
• Admitted for 1 year initially with 2 year extensions
• May remain in the U.S. as long as he or she continues to undertake the
activities for which entry was initially granted. (ADV that H and L
classifications do not offer)
• doesn’t need preliminary petition by a sponsoring entity in U.S. Noncitz
initiates process themselves.
• allows spouse and children to accompany and spouse to work too
• E visa holders do not need to retain a foreign residence that they do
not intent to abandon.
 31

Treaty investor must have invested or be in the process of investing

a substantial amount of capital in an enterprise which he or she will
develop and direct and which will not be a marginal enterprise
entered into solely to earn a living. Substantiality of investment is
not regulated by ins or the dos. Matter of Walsh and Pollard.
***definition of substantial is found in INA § 101(a)(45).***

Matter of Walsh and Pollard

• British company contracted with gm to assist as automotive
design engineers. They opened up a subsidiary company in the U.S.
called IAD, corp. And invested the meager amount of $15,000, rented
office space, and hired 2 American citizens as employees. Chief
immigration judge found that the company qualified as a treaty investor
and that the applicant employees were highly skilled individuals
necessary for the IAD, LTD’s investment into creating IAD Corp and thus
granted an e-2 visa. Ins contended that the British company had not
made a “substantial” investment in the U.S. and that the applicants were
not entitled to e-2 visas as employees of the treaty investor b/c they were
not coming to develop and direct the investment of the treaty investor.
• Held
1) That, b/c the substantiality of investment is not regulated
by ins or the dos, the investment by the British company was
sufficient to establish a profitable and viable business in
the U.S..
• Proportionality test has been met by treaty
investor
2) Bc employees have special qualifications and are
essential to the treaty investor, they are entitled to be
granted e-2 visas
• Nothing in the service regulations relates to
issue of whether employees fit into the category of
employees of a treaty investor company qualified to
come to the U.S. with an e-2 visa.
• Both applicants are unique

(8) B1 NONIMMIGRANT VISAS B1 visas

• Includes the following:
i) Missionaries
ii) Aliens coming to the U.S. to attend an executive seminar
iii) Aliens seeking an investment which would qualify for e-2 status
iv) Aliens coming to open or be employed at a new branch or
subsidiary which will qualify them for l-1 status
v) Foreign sports teams
• Excludes aliens “coming for the purpose of performing skilled or
unskilled labor” INA §101(a)(15)(B) p. 20.
• noncitizens visiting U.S. temporarily for business
• noncitizen initiates process overseas; no petition need be filed on his
behalf w/ BCIS in U.S. and no labor cert required.
• “business” refers to “conventions, conferences, consultations, and other
legitimate activities of a commercial or professional nature. It does not
include local employment of labor for hire”
• Sometimes, this conceptual distinction between h2 and b1s are hard to
apply in the real world.
 32

Language and legislative intent of the act show that Congress

intended only to extend nonimmigrant classification to temporary
workers who seek to furnish noncompetitive services to labor.
International Union Of Bricklayers And Allied Craftsman v. Meese

International Union Of Bricklayers And Allied Craftsman V. Meese

• Homestake sought a new technology for gold ore processing,
and contracted out to a west Germany company. Contract was made
contingent upon Didier’s West German employees completing the work
on site in CA, some of the work involving bricklaying. Didier submitted B-
1 temporary visitor for business visa petitions and plaintiffs filed suit,
alleging that the practice of issuing B-1 visas under the INA operations
instructions violates § 101(a)(15)(B) of the act b/c it issues visas to
perform skilled or unskilled labor expressly prohibited and b/c alien have
been permitted to bypass labor certification required under § 101 (a)(15)
(H)(ii) p.22 of the act.
• Court held that INS Operations Instruction 214.2(b)(5) was
unlawful and in violation of § 101(a)(15)(B) and § 101 (a)(15)(H)(ii) of the
INA- O.I. 214.2(b)(5) enjoined from enforcement.
• Language and legislative intent of the act show that Congress
intended only to extend nonimmigrant classification to temporary
workers who seek to furnish noncompetitive services to labor.
• Case is distinguishable from Hira in that Hira permits the
issuance of B-1 visas to aliens coming to the U.S. to
engage in intercourse of a commercial character or
coming to work as a necessary incident to international
trade or commerce. (know this case!)
• After Intl Union: INS- alien nonimms otherwise qualified as B-1 nonimms may
be issued visas and may enter for purpose of supervision or training of others
engaged in building or construction work, but not for purpose of actually performing
building/construction work themselves. 8 C.F.R. §214(b)(5).
• NAFTA: no provision for perm immigration, but allows 4 categories of Canadian
and Mexican citizens to enter U.S. as nonimms if they are businesspersons engaged
in trade in goods, provision of services or conduct of investment activities. (1)
Business visitors, (2) traders and investors, (3) intra-company transferees, and (4)
professionals.

Victim Visas: VAWA- two new nonimm visa categories for victims of abuse or
trafficking related crimes if helpful in prosecution/investigation of perpetrators. T category
visa lim to 5,000/yr; U category based on abuse from specific crimes capped at 10,000/yr
§§101(a)(15)(T), (U) p. 27-28.

(8) V Visas and Blurring of the imm-nonimm line. §101(a)(15)(V)

• created in 2000 to ease hardship caused by long backlogs and adjudicatory delays in
close fam member visa categories.
• relief is limited to spouse and minor children who are beneficiaries of 2nd pref petitions
filed on or before 12/21/2000; may obtain V visa once more than three yrs have
elapsed since petition was filed.
• work authorization is provided and certain inadmissibility grounds are waived (3&10
yr bars of §212(a)(9)(B)
 33

(IV) INADMISSIBILITY OF ALIENS

OVERSTAYS
If an alien (a) There is an Under INA §
overstay bar…
Is unlawfully present for a single Voluntarily departs Of 3 years §212(a)(9)(b)(i)(i)
period of more than 180 days
but less than 1 year
is unlawfully present for a single Voluntarily departs Of 10 years §212(a)(9)(b)(i)(ii)
period of 1 year or more
Is unlawfully present for an Has been ordered Permanently but §212(a)(9)(c)(i)(i) & (ii)
aggregate period of more than removed and then waivable
1 year enters or attempts to
enter illegally
Waiver for overstays available in § 212(a)(9)(B)(v) if refusal of admission would create extreme
hardship to the alien’s citizen/LPR spouse or parent.

(B) GROUNDS FOR INADMISSIBILITY

• §101(a)(13) admission defined p. 19

• inadmissibility grounds apply to any noncitizen who hasn’t been admitted into U.S.,
deportability grounds apply only after noncitizen has been admitted
• §212(a)(6)(A)(i): inadmissibility ground for alien in U.S. w/o being admitted or paroled. p.
122- main substantive charge used to remove alien.
• §101(a)(13) entry- U.S. ex. rel. Bolpe v. Smith: entry means any entry, not just 1st;
except innocent, casual, and brief excursion by resident alien outside this country’s
borders may not subject him to consequences of entry. Rosenberg v. Fleuti.
• §101(a)(13)(C) when perm resident will not be regarded as seeking admission into U.S.
p. 19.
• This would be a counter to Fleuti, but here express standards are listed as seen
in Matter of Collado
• BIA has rule returning LPRs are presumed not to be applicants for admission.
Government bears burden of proof to establish exception in §101(a)(13)(C) applies p. 19
• §237(a)(1)(A) p. 256- deportability ground that covers any noncitizen inadmissible at time
of entry or adj of status. Any inadmissibility ground can be turned into potential deportability
ground later should inadmissibility go undetected at port of entry.
• §212(d)(3) p. 131 provides DHS w/ discretionary power to waive nearly all inadmissibility
grounds for those who intend to enter U.S. as nonimms- those w/ spouse, child, or parent
who is U.S. cit or LPR most likely to be eligible for a waiver. §212(h) waiver for crim grounds
p. 136; §212(g) health related conditions p. 135.
• §242(a)(2)(B) bars judicial review of decisions to grant or deny waivers under §212(h) or
(i)

(1) HEALTH RELATED GROUNDS § 212(A)(1) P. 107 (SM A)

(2) CRIMINAL CONVICTIONS § 212(A)(2) P. 109 (SM A)

(3) FRAUD AND WILLFUL MISREPRESENTATION § 212(A)(6)(C) P. 122(SM A)

Congressional intent
 34

• Prevent aliens from attempting to secure entry into the U.S. by fraudulent means
and then, when the falsity is discovered, proceeding with the application as if nothing
has happened

Nature of penalty
• Lifetime bar, unless waiver is obtainable

Criteria for finding ineligibility

(1) There has been misrepresentation made by the applicant or by an
agent of the applicant before a us official and in the alien’s own visa
application
• Misrepresentations made in connection with someone else’s visa
application is not applicable here
• Timely retraction will serve to purge a misrepresentation and remove it
from further consideration as a grounds for INA § 212(a)(6)(c) ineligibility
• Silence ≠ misrepresentation
• That an alien pursues a visa application via a travel agency or an
attorney does not insulate the alien iff it was established that the alien was
aware of the action taken in furtherance of a misrepresentation.
• 30/60 day rule:
• If an alien gets employed within 30 days after the issuance of a
visa, then the misrepresentation is presumed.
• If the alien gets employed after 30 days but within 60 days,
then no misrepresentation is presumed.
• If an alien get employed after 60 days of the issuance of a visa,
the such conduct ≠ misrepresentation.
(2) Misrepresentation was willfully made
• Willfully = knowingly and intentionally as distinguished from
accidentally, Inadvertently, or in an honest belief that the facts are otherwise
• To find willfulness, the alien must have been fully aware of the nature of
the information sought and knowingly, intentionally, and deliberately made an
untrue statement
• It is not a defense for an alien to say that the misrepresentation was
made b/c someone else advised the action unless it is found that the alien
lacked the capacity to make judgement.
(3) The fact misrepresented is material or
(4) The alien uses fraud to procure a visa or other documentation or
(5) To receive a benefit from the INA.

Matter of Cervantes-Gonzales: D procured fake birth certificate and ssn and intended to
use docs to get U.S. passport, but wants waiver of inadmiss b/c of extreme hardship.
Ct held: act of getting fake birth cert w/ intent to defraud U.S. by using it to get a passport
falls w/i §212(a)(6)(C) rendering alien inadmiss and subj to deportation.

• Since 1996 §212(a)(9)(B) as of 4/1/97 noncit who has been unlawfully present for
single period of more than 180 days but less than one yr, then voluntarily departs, is
inadmiss for 3 yrs. 10 yr bar if present for single period of 1 yr or more, triggered
once person departs or is removed. Exceptions and waivers §212(a)(9)(B)(iii)-(v)
• §212(a)(9)(B)(ii) unlawful presence- person who either entered w/o inspection or
stayed beyond expiration date of nonimm admission.
• §212(a)(9)(B) doesn’t apply to noncitz in U.S. if thy haven’t departed U.S. after
accumulating 180 days or one yr of unlawful presence.
• §212(a)(9)(C) noncitz is inadmiss if unlawfully present for more than one yr or
ordered removed, and then enters or attempts to enter w/o being admitted.
 35

• §222(g) if noncitz is admitted on noncitz visa and overstays, visa is void at concl of
authorized period of stay.
•

(4) NATIONAL SECURITY § 212(A)(3)

§ 212(a)(27): provides for the exclusion of persons seeking to enter to engage in
activities which must be prejudicial to the public interest or endanger
the welfare, security, or safety of the U.S.

§ 212(a)(28)(d):provides for the exclusion of aliens who advocate or teach the

economic, international, or governmental doctrines of world
COMMUNISM
§ 212(a)(28)(g):provides for the exclusion of aliens who write, publish, circulate,
distribute, or knowingly possess to circulate any written or printed
materials advocating or teaching
(1) The overthrow of the U.S. govt. By force or of all other forms of
law
(2) The duty, necessity, or propriety of the unlawful killing of any us
officials
(3) Unlawful damage, destruction, or injury to property
(4) Economic, international, and governmental doctrines or world
communism.

Court will not look behind the exercise of the INS’s discretion in immigration
decisions. However, agency actions must be facially legitimate and bona
fide. Thus, burden is on the govt. For coming up with substantive reasons
for denying a visa. Kleindest v. Mandel

Kleindest v. Mandel - Ideological Exclusion

• Issue was whether the exclusion of an alien from speaking in the U.S.
violated his audience’s 1st amendment rights.
• Held that it did not violate their 1st amendment rights
• Plenary power allows Congress to exclude aliens for the
possession of certain characteristics
• Court will not look behind the exercise of the INS’s discretion in
immigration decisions.
• However, agency actions must be facially legitimate and bona
fide.
• Thus, burden is on the govt. For coming up with substantive
reasons for denying a visa
• Case is often used to support consular non-review
• Citizens right to hear Mandel in person is not a basis since there is no
Const. right of entry by an alien
• Most importantly this case is seen as related to Ideological Exclusion

(5) TERRORISTS § 212(A)(3)(B)(I), (II), (III)

(6) FOREIGN POLICY

§ 212(a)(3)(c): provides for the exclusion and Inadmissibility of aliens
for foreign policy exclusion grounds.
 36

• Alien can be excluded if the sec of state has reasonable grounds to believe
an alien’s entry or proposal activity within the U.S. would have “potentially”
serious adverse foreign policy consequences.

• Where exclusions do not apply

i) An alien who is an official of a foreign govt. Or a purported govt., Or who
is a candidate for election to a foreign govt. Office would not be excludable
under this provision solely b/c of past, current, or expected beliefs or
statements or associations which would be lawful in the U.S.
ii) Cannot exclude individuals on the basis of their past, current, or
expected beliefs which would be lawful in the U.S. unless the sec of state
personally determines that the alien’s admission to the U.S. would
compromise a compelling foreign policy interest and so certified to the
relevant Congressional committee.
• This exclusion is used only in unusual circumstances, e.g.
Alien suspected of terrorism attack if admitted into
us or when entry into the U.S. would violate a treaty or
international agreement to which the U.S. is a party.
 37

(C) STATUTE (§212)

§212 INADMISSIBILITY OF ALIENS

(A) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR ADMISSION

Except as otherwise provided in this chapter, aliens who are Inadmissible under the
following paragraphs are ineligible to receive visas and ineligible to be admitted to the
united states:

(1) CRIMINAL AND RELATED GROUNDS

(a) conviction of certain crimes

(i) in general
• grounds are waivable under certain limited circumstances.
• §101(a)(43) aggravated felony p. 36- ground of deportability, but not
expressly listed in §212 as basis for inadmiss, but many fall w/i §212(a)
(2) p. 19 and commission of an agg felon can disqualify person from
inadmiss. waiver.
• §101(a)(48) defines conviction p. 40
Except as provided in clause (ii), any alien convicted of, or who
admits having committed, or who admits committing acts which
constitute the essential elements of—

(I) A crime involving moral turpitude (other than a purely

political offense) or an attempt or conspiracy to commit
such a crime, or
(II) A violation of (or a conspiracy or attempt to violate) any
law or regulation of a state, the united states, or a foreign
country relating to a controlled substance (as defined in
section 802 of title 21),

--is Inadmissible.

(ii) exception
Clause (i)(i) shall not apply to an alien who committed only one
crime if--

(I) The crime was committed when the alien was under 18
years of age, and the crime was committed (and the alien
released from any confinement to a prison or correctional
institution imposed for the crime) more than 5 years before
the date of application for a visa or other documentation
and the date of application for admission to the united
states, or
(II) The maximum penalty possible for the crime of which the
alien was convicted (or which the alien admits having
committed or of which the acts that the alien admits having
 38

committed constituted the essential elements) did not

exceed imprisonment for one year and, if the alien was
convicted of such crime, the alien was not sentenced to a
term of imprisonment in excess of 6 months (regardless of
the extent to which the sentence was ultimately executed).

(b) multiple criminal convictions

Any alien convicted of 2 or more offenses (other than purely political
offenses), regardless of whether the conviction was in a single trial or
whether the offenses arose from a single scheme of misconduct and
regardless of whether the offenses involved moral turpitude, for which the
aggregate sentences to confinement were 5 years or more is
Inadmissible.

(c) controlled substance traffickers

Any alien who the consular or immigration officer knows or has reason to
believe is or has been an illicit trafficker in any such controlled substance
or is or has been a knowing assisted, abettor, conspirator, or colluder with
others in the illicit trafficking in any such controlled substance, is
Inadmissible.

(d) prostitution and commercialized vice

Any alien who—

(i) Is coming to the united states solely, principally, or incidentally to

engage in prostitution, or has engaged in prostitution within 10
years of the date of application for a visa, admission, or
adjustment of status,
(ii) Directly or indirectly procures or attempts to procure, or (within 10
years of the date of application for a visa, admission, or
adjustment of status) procured or attempted to procure or to
import, prostitutes or persons for the purpose of prostitution, or
receives or (within such 10-year period) received, in whole or in
part, the proceeds of prostitution, or
(iii) Is coming to the united states to engage in any other unlawful
commercialized vice, whether or not related to prostitution,

--is Inadmissible.

(e) Certain aliens involved in serious criminal activity who have

asserted immunity from prosecution
Any alien--
(i) Who has committed in the united states at any time a serious
criminal offense (as defined in section 1101(h) of this title),
(ii) For whom immunity from criminal jurisdiction was exercised with
respect to that offense,
(iii) Who as a consequence of the offense and exercise of immunity
has departed from the united states, and
(iv) Who has not subsequently submitted fully to the jurisdiction of the
court in the united states having jurisdiction with respect to that
offense,
 39

--is Inadmissible.

(F) Waiver authorized

For provision authorizing waiver of certain subparagraphs of this
paragraph, see subsection (h) of this section.

(g) foreign government officials who have engaged in particularly

severe violations of religious freedom
Any alien who, while serving as a foreign government official, was
responsible for or directly carried out, at any time during the preceding
24- month period, particularly severe violations of religious freedom, as
defined in section 6402 of title 22, and the spouse and children, if any, are
Inadmissible.

(3) SECURITY AND RELATED GROUNDS

(A) In general

Any alien who a consular officer or the attorney general knows, or has
reasonable ground to believe, seeks to enter the united states to engage
solely, principally, or incidentally in—

(i) Any activity

(I) To violate any law of the united states relating to
espionage or sabotage or
(II) To violate or evade any law prohibiting the export from the
united states of goods, technology, or sensitive
information,
(ii) Any other unlawful activity, or
(iii) Any activity a purpose of which is the opposition to, or the control
or overthrow of, the government of the united states by force,
violence, or other unlawful means,

--is Inadmissible.

(B) TERRORIST ACTIVITIES (VERY BROAD)

(i) In general
Any alien who—
(I) Has engaged in a terrorist activity,
(II) A consular officer or the attorney general knows, or has
reasonable ground to believe, is engaged in or is likely to
engage after entry in any terrorist activity (as defined in
clause (iii)),
(III) Has, under circumstances indicating an intention to cause
death or serious bodily harm, incited terrorist activity,
(IV) Is a representative (as defined in clause (iv)) of a foreign
terrorist organization, as designated by the secretary under
section 1189 of this title, or
(V) Is a member of a foreign terrorist organization, as
designated by the secretary under section 1189 of this title,
 40

which the alien knows or should have known is a terrorist

organization

--is Inadmissible.

An alien who is an officer, official, representative, or spokesman of the Palestine liberation

organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.

(ii) "terrorist activity" defined

As used in this chapter, the term "terrorist activity" means any
activity which is unlawful under the laws of the place where it is
committed (or which, if committed in the united states, would be
unlawful under the laws of the united states or any state) and
which involves any of the following:
(I) The highjacking or sabotage of any conveyance (including
an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or
continue to detain, another individual in order to compel a
third person (including a governmental organization) to do
or abstain from doing any act as an explicit or implicit
condition for the release of the individual seized or
detained.
(III) A violent attack upon an internationally protected person
(as defined in section 1116(b)(4) of title 18) or upon the
liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) Biological agent, chemical agent, or nuclear
weapon or device, or
(b) Explosive or firearm (other than for mere personal
monetary gain),with intent to endanger, directly or
indirectly, the safety of one or more individuals or to
cause substantial damage to property.

(C ) FOREIGN POLICY
(i) in general
An alien whose entry or proposed activities in the united states the
secretary of state has reasonable ground to believe would have
potentially serious adverse foreign policy consequences for the
united states is Inadmissible.
(ii) exception for officials
An alien who is an official of a foreign government or a purported
government, or who is a candidate for election to a foreign
government office during the period immediately preceding the
election for that office, shall not be excludable or subject to
restrictions or conditions on entry into the united states under
clause (i) solely because of the alien's past, current, or expected
beliefs, statements, or associations, if such beliefs, statements, or
associations would be lawful within the united states.
(iii) Exception for other alien
 41

An alien, not described in clause (ii), shall not be excludable or

subject to restrictions or conditions on entry into the united states
under clause (i) because of the alien's past, current, or expected
beliefs, statements, or associations, if such beliefs, statements, or
associations would be lawful within the united states, unless the
secretary of state personally determines that the alien's admission
would compromise a compelling united states foreign policy
interest.

(D) MEMBERSHIP
(E) NAZI PERSECUTION/GENOCIDE
(F) ASSOCIATION WITH TERRORIST

- Providing Material Support for Terrorists and the issue of

duress
- Holder v. Humanitarian Law Project (in the update)
•
 42

(D) JUDICIAL REVIEW OF VISA DENIALS

According to the USSC, the APA allows courts to review agency action, unless Congress has
made clear otherwise that judicial review is Inapplicable.
Consular decisions made overseas are still generally held to be beyond the reach of the
courts, largely b/c of the way courts have construed Mandel. Thus, the NY district court
held in Pena v. Kissenger that a consul’s decision to deny an immigrant visa based on
his or her relation to a US Citizen or LPR is not judicially reviewable.
Pena v. Kissenger
Pena was an American resident who married a national of the Dominican republic, who
then sought a visa to enter the U.S. The US Consul in the Dominican republic
concluded that the marriage was a sham and denied the visa. Pena sought an action
in district court seeking an injunction compelling the consular to issue the visa.
Issue was whether a consul’s decision to deny a visa was judicially reviewable
Held that a consul’s decision to deny an immigrant visa based on his or her
relation to a US Citizen or LPR is not judicially reviewable.
♦ Numerous precedents make clear that a consul’s decision is not
judicially reviewable
♦ This decision was not arbitrary or capricious
♦ Mandel dictates that judicial review of immigration officials
decisions are not reviewable

(E) 1996 AMENDMENTS

The 1996 amendment to the INA, also known as the “welfare act” placed the concern that
immigrants would become public charges into legislation.
• It requires affidavits of support and makes them enforceable for 5 years
after the arrival b/c of a belief that aliens in America should be self-sufficient
and that they place a net cost on taxpayers.
• Affidavit can come from a sponsor, who is often a US Relative, who is
often petitioning for their entry under an immigrant classification for family
reunification. Under current law, sponsors agree to support only for 3 years and
it is legally enforceable.
• Affidavit requirement also applies to employment based immigration
where the Employer is a relative or an entity in which the relative has a 5 percent
ownership interest.
• Act also placed direct restrictions on public benefit access and indirect
bars through deeming provisions.
• I.e., Food stamps, ssi, and nonemergency Medicaid for 5 years.
• After the 5 year bar expires, most immigrants will remain ineligible for
public assistance due to deeming provisions.
 43

(F) MODERN ADMISSION PROCEDURES

(1) NONIMMIGRANT ADMISSIONS

1) Nonimmigrant goes to consular office in his or her country and fills out an application
(personal appearance requirement may be waived for some categories and a great range
of categories allow for mail application
2) Alien bears burden of proving qualification for the visa, the most important issue is that
the alien has a home in the foreign country to which he or she intends to return to.
3) Consular has the discretion to require any form of documentary support deemed
necessary
4) If visa is approved, the consular stamps a nonimmigrant visa into the applicant’s
passport. The stamp shows the visa number, date and place of issue, expiration date,
and visa classification. It is good for any number of entries until the expiration date.
5) Without a visa, an alien will not be able to board a plane or other vessel for the U.S..
Even with a visa though, the alien is not guaranteed admission. The immigration officials
at the border are not bound by the consul’s decision on admissibility and may deny
admission despite the possession of a visa.
6) Aliens coming to the U.S. must fill out a form i-94 card before the plane lands and carry it
with them through inspection.
7) Officer takes top portion of the form and alien takes bottom portion which is stapled to the
passport. It must be surrended upon departure from the US

(2) IMMIGRANT ADMISSIONS

Beneficiary = alien who seeks to immigrate
Petitioner = family member or Employer who files the visa petition
• Petitioner can withdraw petition at anytime without the
beneficiary’s consent
• Death of the petitioner automatically revokes the visa
• If beneficiary has not yet traveled to the U.S. or been accorded
adjustment status, the revocation will block the beneficiary’s
immigration.
• Spouse of a US Citizen can self-petition for 2 years as an
immediate relative after the death of the citizen spouse, if they have
been married for 2 years.
• Battered spouses or children may also self-petition under certain
conditions.

i.) Petitioner files a visa petition by mail to the INS regional service ctr.
• Petition allows the INS to verify the family or employment relationship
that underlies the alien’s claim to preference or immediate relative status.
• Family petitions are files on form i-130.
• Employment based petitions are filed on form i-140, and e must have a
labor certification from the labor dept. Before presenting the i-140 to ins.
ii.) Upon approval, the INS examiner endorses the visa petition, which is
forwarded to the state’s dept. National visa center where the nvc creates a case
file and handles the preliminary paperwork needed before scheduling an
interview with the US Consul in the alien’s country.
iii.) If the petition indicates that the alien is in the U.S. and wishes to obtain
residence through adjustment of status, rather than through the visa process, the
petition will be sent to the appropriate office. Approval of the visa process does
 44

not mean that ins has found the alien generally admissible. The issue must be
decided by consul or by the INS examiner considering an adjustment application.
iv.) When the visa petition is received by the nvc, an officer checks to see if it
is complete and technically correct, creates an electronic files, and notifies the
consulate where the alien is expected to apply to the visa. Aliens who do not
adjust statutes in the U.S. are ordinarily expected to return to their home
countries to pick up their visas at the US Consulate there.
v.) If the priority date is current or if the beneficiary is a no quota immediate
relative, then no waiting lists apply and a visa will be available.
• Beneficiary then must complete packet 3 which includes:
1) Police certificate or certificates
2) Certified copy of prison record
3) Record of birth
4) Military record
5) Certified copies of all other records or documents which
the consular officer considers necessary
6) Affidavit of support that alien will not become a public
charge
• Once the biographical information is completed, the alien then notifies
the consulate when she has all of the documentation
• Once the officer makes sure that all of the information has been correctly
supplied on the application form, and has interviewed the applicant, the
officer then decides whether or not to deny the visa
1) Denial is subject to a limited form of review by another
officer at the post and, under some circumstances, referral to the
dept. Of state’s visa office for an advisory opinion.
2) If the applicable Inadmissibility ground is subject to
waiver, however, the consul usually assists the alien in
completing a waiver application, to be forwarded to the INS for
adjudication, along with the consul’s report of any pertinent
information.
• If the consul finds the alien Inadmissible, the officer issues an immigrant
visa, valid for 6 months.
• Visa is not stamped into the alien’s passport but consists of
separate documents with attachments that must be presented to the
admitting immigration officer at the port of entry
• If that officer finds no disqualification’s upon his inspection, he will keep
the immigrant visa, make a notation of admission as a lawful permanent
resident in the alien’s passport, and forward the necessary papers to an ins
facility for the ultimate issuance of the alien registration receipt card (AKA
green card). Issuance may take several additional months.
vi.) If a visa is not immediately available, the officer notifies the alien and it is
held until a visa is available.

(3) ADJUSTMENT OF STATUS

(Discretionary Decision—not subject to judicial review
INA To ease up resources and assist nonimmigrants who wished to have an adjustment of
§ 245 status but did not want to travel to their home country to do so, the INS adopted the
1952 INA § 245.
§245 authorizes the adjustment of status from nonimmigrant to immigrant for aliens who
meet certain requirements. This whole process can now be carried out by the INS
and the alien need never leave the US Today, adjustment is an increasingly
common immigration practice.
 45

INA § 245 (c) Note: adjustment does not eliminate the need for a visa petition in those immigrant
categories to which the petition requirement applies (family preference and
(8)
employment based preferences)

Unless they are immediate relatives of US Citizens, aliens are ineligible for
adjustment under §245(a) if they worked without authorization before filing
or if they are in unlawful immigration status on the date of filing the
application for adjustment of status or who have failed for their own fault to
maintain a continuously lawful status entry into the US. Pei-Chi Tien v.
INS

However, under INA § 245(k), §§245(c)(2),(7), & (8) DO NOT bar adjustment of
status by certain aliens in the employment based preferences if they have
NOT been out of lawful status or engaged in unauthorized work for more
than an aggregate of 180 days.

§245(a): AG can change status from admitted/paroled to LPR

§245(i)(1): adjustment of status is also available for illegal aliens if the alien
pays $1000 as of the date of receipt of application to the AG.

Entering the US with the intent of remaining permanently is grounds for

denying an adjustment from business visitor to permanent
resident. Jain v. INS
Jain v. INS
Jain was an Indian citizen. On two occasions, he entered the U.S. on business visitor’s
visas, attempting to make US Contacts for his export business in India. He came a
third time, ostensibly for the same reason. In fact, he had sold his Indian business
and intended to reside permanently in the US Jain then petitioned for an adjustment
in status to permanent resident. The ins, finding that he had improperly obtained the
business visa in light of his intention to stay, denied the adjustment, and began
deportation proceedings.
Held that entering the U.S. with the intent of remaining permanently is grounds for
denying an adjustment from business visitor to permanent resident
Ins retains discretion in deciding upon an application of adjustment, and lack of good faith
in entering the U.S. is a factor which the INS may consider

TWO GROUPS OF ALIENS INELIGIBLE FOR ADJUSTMENT UNDER §245(A)

1) Aliens who seek to qualify under one of the employment based immigration categories
and are in an unlawful nonimmigrant status §245(c)(7)
♦ But! In 1997, Congress provided that the ineligibility grounds in §§245(c)(2), (7), & (8) do not bar
adjustment of status by certain aliens in the employment based preferences if they have not been
out of lawful status or engaged in unauthorized work for more than an aggregate of 180 days.
INA §245(k)
2) Any alien who has worked without authorization or who has otherwise violated the terms
of the nonimmigrant visa §245(c)(8)
 46

An alien denied adjustment of status is NOT disqualified automatically from LPR

status
♦ She can use the U.S.ual immigrant visa process to become an LPR but
she must qualify for an immigrant visa and cannot be Inadmissible
♦ But! Overstays cannot use the U.S.ual visa process.
RECISSION OF ADJUSTMENT OF STATUS
♦ If A/G believes that person was not in fact eligible for such adjustment of status,
the adjustment can be rescinded anytime within 5 years of the adjustment
♦ They are heard by immigration judges and are appealable to the BIA.
♦ Govt. bears the burden of establishing by clear and convincing evidence that the
adjustment was improperly granted.

(4) PAROLE - § 212(D)(5)

“authorizes the attorney general to parole aliens under such conditions as she may
prescribe for emergent reasons or reasons deemed strictly in the public interest”
Flexible tool used either before or after an administrative finding of Inadmissibility, to
permit medical treatment, to allow appearance in litigation or a criminal prosecution,
to prevent inhumane separation of families or for other humanitarian reasons, or to
permit release pending adjudication of an Inadmissibility case.
Allows an alien to travel away from the border and the detention facilities and yet still
remain subject to exclusion proceedings so that technically, an alien has made no
entry.
May be granted only by A/G and a select list of delegates (ins district directors)

(5) RE-ADMISSION OF LPR’S

Entry means any entry, not just the first one. US Ex. Rel. Volpe v. Smith
(1933)

Exception was carved out in Rosenberg v. Fleuti in 1963 and since

amended in § 101(a)(13)(c):

An innocent, casual, and brief excursion by a resident alien outside of this

country’s borders may not have been intended as a departure disruptive of
his resident alien status and therefore may not subject him to the
consequences of an ‘entry’ into the country on his return. However, this
does not apply to LPR’s who have committed an offense identified in 212(a)
(2) and who has not since such time been granted relief under 212(h) or
240(a)(a).

If a permanent resident alien plans to leave this country temporarily, he

may do so and then return as a “special immigrant” under INA §101(a)(27)
(a) and § 211(b). But for purposes of return, it is important for the alien to
take along documentation clearly demonstrating that he or she is a
returning resident. If the alien will be gone from the country no longer than
12 months, the green card may be used as the needed re-entry permit. INA
§ 223.
 47

Under INA §101(13)(c)(ii), an alien lawfully admitted for permanent

residence in the U.S. shall be regarded as seeking an admission into the
U.S. for purposes of the immigration laws if the alien has been absent from
the U.S. for a continuous period in excess of 180 days, making all of the
Inadmissibility grounds of §212(a) apply fresh.

(II) ADMISSION PROCEDURES

CH. 5 p. 453-534
Constitutional Requirement of Due Process
Due process does not apply to exclusion!! The Knauff-Mezei doctrine established
that although citizen and noncitizens have a right to due process, an extraterritorial
alien has no right to due process.

Knauff-Mezei doctrine largely immunizes the political branches’ procedural decisions

in exclusion cases.

“Whatever the procedure authorized by Congress is, it is due process as far as

an alien denied entry is concerned.” Knauff.

U.S. ex. Knauff v. Shaugnessy:

• Knauff case is about a German war bride who was denied a hearing. Of
what was she being deprived? Interest of being . A/G, after reviewing her
record, found that her admission would be prejudicial to US Interests, and the
INS refused her entry.
• Held that an alien wife of a US Citizen may be barred from entering the
U.S. due to a dept. Of justice ruling, without a hearing, that her admission
would be prejudicial to US Interests.
• In 1941, Congress enacted a law permitting the executive to
exclude any alien whom he found to be prejudicial to US Interests.
• As a basic rule, no alien has a right of entry into the U.S.;
Congress may create any condition to entry it desires.
• Case represents almost total deference to the will of Congress.
• “Whatever the procedure authorized by Congress is, it is due process as far as an alien
denied entry is concerned.”
Furthermore, an alien stranded at the border b/c he had been barred from the
U.S. for security reasons and b/c no other country will accept him, has no right
to enter. Mezei.

THE JAPAENSE IMMIGRANT CASE (Yamata v. Fisher)

• Japanese woman was found to be excludable at time of entry as a pauper
• Congress may per Fong Yue Ting v. United States
o exclude aliens of a particular race from the United States;
o prescribe the terms and conditions upon which certain classes of
aliens may come to this country
o establish regulation for sending out of the country such aliens as
come here in violation of law;
 48

o and commit the enforcement of such provisions, conditions and

regulations exclusively to executive officers, without judicial
intervention
• Not knowing English is not an issue for the court
• Right to hearing
o INA 240 now governs this

Kwong Hai Chew v. Colding:

• P sought writ of habeas corpus after being detained as an aliend deemed to
be prejudicial to the public interest pursuant to 8 C.F.R. §175.57(b).
• Held: Detention w/o notice of any charge and w/o opportunity to be heard is
not authorized by 8 C.F.R. §175.57(b).
• Lower ct inappropriately applied Knauff which relates to right of entrant alien-
not resident alien’s right to be heard. Had P a LPR remained Stateside he
would have been entitled to 5th amend due process.
• §175.57(b) applies to aliens who are designated excludable, doesn’t refer to
expulsion of LPR phys present in U.S.
• P’s residency status wasn’t disrupted by foreign trip involving continuous
service on vessel of U.S. registry whose home port is in U.S.
• ruling doesn’t reach issue of A.G.’s authority to order deportation after giving
him reasonable notice of charges and opportunity to be heard. P is entitled to
due process.
Mezei
Mezei lived in the U.S. from 1923-1948, having obtained his residency papers.
In 1948, he attempted to visit his mother in Rumania but was denied entry at
the border. He remained in Hungary for 19 months and then was ordered to
leave. He took a ship to Ellis island, where he attempted to re-enter the U.S..
The A/G found him a security risk (communist associations) and the INS thus
denied him entry. No other country would accept him either. After a lengthy
detention on Ellis island, he petitioned for a habeas corpus, contending that
his detention violated due process. He had substantial ties to us (spouse and
children)
Demonstrates that due process does not apply to exclusion.
Held that an alien stranded at the border b/c he had been barred for the U.S. for
Note that here the security reasons and b/c no other country will accept him has no right to enter
alien did not Power of Congress to prohibit the entry of aliens is absolute.
assimilate his
status by returning Congress has provided that the executive may bar the entry of an alien deemed
quickly a security risk and that is the end of the matter.
Note that here the alien did not assimilate his status by returning quickly.
INA §235(c) permits the A/G to remove an arriving alien on most of the
national security Inadmissibility grounds w/o a further hearing if she acts
on the basis of “confidential information” of which “would be prejudicial to
the public interest, safety, or security.”
 49

Thus, the traditional understanding of Mezei is that an alien’s entitlement to

constitutional DP is to be determined by whether he stands at the border trying
to get in [admission] (even if he has been here before) or instead has already
made an entry and must be removed [deportation]. Mezei and Plasencia
removed the danger of exclusion many LPR’s faced when briefly leaving the
country but it did not remove all barriers from excluding aliens who are
statutorily Inadmissible for crimes.

Once an alien gains admission into the U.S. and begins to develop the ties that
go with permanent residence, however, his constitutional status changes
accordingly. According to Fleuti, an innocent, casual, and brief excursion by a
resident alien outside of this country’s borders may not have been intended as
a departure disruptive of his resident alien status and therefore may not
subject him to the consequences of an ‘entry’ into the country on his return.
Fleuti/ since amended in § 101(a)(13)(c)

In Landon v. Plasencia, the S. Ct. made clear that a resident alien who
briefly leaves the U.S. is entitled to DP when she returns. However, in a
footnote to the case, the court made clear that exactly what DP procedures are
due was not decided. Whether the excursion was brief is determined on a
factual case by case basis and whether the alien intended to abandon the
united states and his LPR status.
Landon v. Plasencia (1982)
• Plasencia was a resident alien found to be transporting illegal aliens at the border
after a brief absence from the U.S. and was denied re-entry. She was gone for only
Note that here 3 days. She had substantial ties to the U.S. (spouse and children). Government
the alien did agreed she was entitled to DP.
return quickly • Held that a resident alien who briefly leaves the U.S. is entitled to DP when she
returns.
• It has long been a rule that an alien entering the U.S. has no due
process rights, but a permanent resident, upon initial entry, begins to
develop the kinds of ties to our society that creates constitutional
guarantees.
• An alien that leaves for a lengthy period of time may lose these
guarantees, but a brief absence does not void them.
• When an LPR’s substantial interest in remaining in this country is at
stake, the DPC forbids the government to stack the decks against the alien.
• Court distinguishes Mezei and held it inapplicable to this case since she was
gone for only 3 days and thus did assimilate her status soon after leaving the country.
• Court does not decide what procedures are due though.

Plasencia distinguishes Mezei but doesn’t’ overrule it. Plasencia’s trip fell outside Fleuti
exception, but ct still gave her constitutional d.p. as returning permanent resident.

§101(a)(13) says that a returning permanent resident isn’t seeking admission unl: absent
for more than 180 days, or commission of crime that would make noncitz inadmissible.

Goldberg: Sup Ct moved beyond restrictive d.p. doctrines that guaranteed procedural
safeguards only for traditional forms of prop- now Ct 1st asks whether claimant has
 50

property or liberty interest under 5th amends d.p. 2nd decides on case-by-case bases
exactly what procedural protections d.p. requires

Board of Regents v. Roth: not all govt actions negatively affecting people deprive them of life,
liberty, or prop. To have

Mathews v. Eldridge: modern d.p. test (1) interests at stake for person, (2) interest of govt in
using existing procedures, (3) gain to accurate decision-making that can be expected from
procedural protection sought.

§235(c) permits A.G. to order removal of arriving alien on most natl security inadmissibility
grounds w/o further hearing if he acts on basis of confidential info, disclosure of which would be
prejudicial to pub interest, safety, or security.

Nonimmigrant admissions
Nonimmigrant visa: noncitz bears burden of proving he qualifies for the visa, and the most important
issue in the high-demand categories (B-1, B-2, F, M, J) will be whether he truly has home in foreign
country to which he intends to return.
• Visa waiver: some eligible countries w/ low visa abuse rates can enter as temporary visitors for
up to 90 days in B-1 or B-2 category w/o visa. Visitor waives all rts to extend stay, change
nonimm status under §245(a) once in U.S. except as immediate relative of U.S. citizen, waives rt
to removal hearing, except may apply for and have hearing on asylum. §217(b).

Immigrant admissions
LPR- 1st visa petition usu required- person can then get an imm visa at U.S. consulate and come to
U.S. or become PR through adjustment of status.
• if permanent resident plans to leave country, she may do so and then return as a special
immigrant under §101(a)(27)(A), 211(b)- if gone longer than 12 mos, green card may be used as
needed re-entry permit §223.

Review of consular decisions

• usu view is that decisions are unreviewable
• §242 eliminates or restricts court review of major categories of immigration decisions (more
discussed in ch. 7)

Parole
• concept under which noncitz is allowed to travel away from border and detention facilities- noncitz
remained subj to exclusion proceedings when it came time to test their rt to remain.
• used often to bring in lots of refugees where statutory provisions are inadequate.
• can be used either before or after administrative finding of inadmiss: to permit medical treatment,
allow appearance in litigation or criminal prosecution, prevent inhuman separation of families, etc.

Efficiency
• post 9/11 long delays b/c of emphasis on security

Adjustment of Status
• §245- from nonimm to imm for noncitz who meet certain requirements. Whole process can be
carried out in U.S.
• §245(a) does applicant meet requirements under (a) and (c)? Noncitz must have been inspected
and admitted or paroled- if you entered w/o inspection you don’t qualify for adj under (a), (c)
makes noncitz ineligible to adj under (a) if they are terrorists deportable under §237(a)(4)(B)
• unl immediate relatives of U.S. citz §245(a) adj is unavailable for noncitz who worked w/o
authorization before filing, or if unlawful imm status on date of filing app
 51

• §245(i) permits lg #s of undocumented migrants to escape effects of 3 and 10 yr bars, if they

have family or employment ties needed for eventual permanent resident status.
• applicant denied adj of status has no admin appeal, but may renew app before imm judge
conducting removal proceedings- imm judge decides anew. §242(a)(1)(B)
• §246(a) rescission of adj acquired under §245 if w/i 5 yrs after adj it appears to A.G. person
wasn’t eligible for adj of status.

(G) EXPEDITED REMOVAL

Prior to expedited removals, there were hearings before IJ when an alien was attempting to
gain entry into our country. Furthermore, under prior law, deportation hearings were
also held if a person had already made an entry. Now, however, expedited removals
are possible.

§ 235(C)(1) STATES THAT EXPEDITED REMOVAL DOES NOT APPLY TO AN

LPR!!! EVEN THOUGH YOU ARE SAYING HE IS INADMISSIBLE, EXPEDITED
REMOVAL IS NOT FOR RETURNING ALIENS! IT IS ONLY FOR ALIENS
SEEKING ADMISSION.

(1) EXPEDITED REMOVAL, GENERALLY

• Procedure for aliens who arrive at the border or port of entry
with no documents that applies at all times and therefore are
Inadmissible under INA § 212(a)(6) & § 212(a)(7)
• May also apply to aliens inside the US, not at the border, if the
A/G decides to expeditiously remove in “her sole and unreviewable
discretion.” See INA § 235(b)(1)(a)(iii).

§235(b)(1) applies to any ARRIVING ALIEN who seeks admission but is

inadmissible under §212(a)(6)(c) or (7), because he has no documents,
or fraudulent or invalid documents.

There is no DP for the arriving alien here being excluded. See Knauff.
An alien subject to § 235(b) is to be removed “without further hearing or
review unless the alien indicates either an intention to apply for asylum
under § 208 or a fear of persecution.”
• If asylum  he is detained and referred to an asylum officer, who
conducts an interview to determine if the alien has a “credible fear of
persecution.” § 235(b)(1)(b)(v)
• If credible fear of persecution  he is detained for further
consideration of the application of asylum with possible release from
parole.
• If no credible fear of persecution  the alien may request
review by an immigration judge in a special procedure.
• Review must take place within 7 days after asylum officer’s
decision and the alien is detained pending review.
• Otherwise, IJ review is available by statute only to persons who
claim to be LPR’s or those admitted as refugees, or to have been granted
asylum.
 52

Expedited removal makes an alien inadmissible for 5 years subj to

waiver. INA § 212(a)(9)(A)(i).

However, an alien may be allowed to withdraw the application for

admission, which a great many do. INA § 235(a)(4).

Judicial review of expedited removal orders under INA § 235(b)(1) is

severely limited.
A court may review such orders only in habeas corpus proceedings and the
statutory text would limit review to certain issues:
1) Whether the petitioner is not an alien ordered removed under §
235(b)(1) and
2) Whether he can prove by a preponderance of the evidence that
he is a permanent resident, was admitted a s refugee, or granted
asylum.
• If the court makes one of these findings, it can only order a
removal hearing under § 240.
• It may not decide whether the alien is actually Inadmissible or
entitled to relief from removal.
• Such suits may be brought within 60 days of the implementation of
the challenged regulation or policy, and the courts are mandated to
expedite their disposition of the case as much as possible.

American Imm Lawyers Assoc v. Reno: Ps and advocacy orgs allege certain interim regs
violate Illegal Immigration Refor and Imm Responsibility Act of 1996 (IIRIRA) contending
expedited removal procedures shouldn’t apply to persons w/ facially valid visas.
Held: IIRIRIA’s expedited removal procedures apply to any alien holding a visa regardless if visa
is “facially valid.” –Aliens seeking admission may be physically allowed w/i borders of U.S.
pending decision, but regarded legally as being detained at border and as never having entered
country.

Alien 1:

Against expedited removal for Arnet For expedited removal of Arnet

235(b)(1)
212(8)(6)(c): misrepresented facts which
compel denying readmission
Lower standard of DP required here according
to Knauff case. Whatever process Congress
has made, it is DP
Arriving aliens are not a protected class

Alien 2:

Against expedited removal for Larry
§ 235(b)(1) is not applicable to Larry based on
statutory construction. It only applies to those
without valid documents and does not include
those who committed crimes of moral
For expedited removal for Larry
He is Inadmissible under § 101(a)(13)(c)(5) of
the INA. It specifies that an alien lawfully
admitted is not considered seeking admission
but they are considered seeking admission if

turpitude. Hearing is required here.
Furthermore, Expedited Removal does not
apply to returning LPR’s seeking readmission,
despite that they may be inadmissible. It only
applies to aliens seeking admission without
papers or with fraudulent papers.
If you do it violates his DP rights. To uphold §
235(b)(1) is to deny some form of DP. Court
held in Yamatayo that deportation procedures
must conform to the dictates of the DPC of the
constitution also look at Plasencia. He is a
LPR who briefly left and is entitled to DP.
Fleuti doctrine dictates this case.
53
an LPR has committed an offense § 212(a)(2)
and returns shall be considered seeking
admission despite his LPR status.
In Volpe, S. Ct. held that entry means any
entry. Also in Knauff and Mezei, we see the
court has expressly held that it is specifically
within Congress’ discretion to exclude any
aliens from admission and courts cannot
substitute their judgment for legislative
mandate.

Alien 3:
Against expedited removal for Ursula
§ 235(b)(1)(a)(3) is arbitrary in limiting an alien
who has left the U.S. for 2 years.
Residents living here have greater due
process rights than those aliens coming here
for the 1st time. Alien who is actually within the
border of the U.S. continuously for a period is
afforded greater protection than those aliens
seeking admission. (EP violation and EP does
not distinguish between aliens and citizens)
Under Knauff Mezei doctrine, abuses of aliens
Matthew v. Eldridge test requires court to
consider interest at stake for individual,
interest of government, and gain to accurate
decisionmaking if additional procedures are
added. Under this framework, it is clear that
Ursula is in a different position than a resident
alien; Ursula has greater liberties at risk
54
For expedited removal for Ursula
Under plain language of statute, § 235(b)(1)(a)
(i), the INS can expeditiously remove an alien
without hearing unless the exceptions apply.
Under (i)(i)(i), A/G can apply clause 1 and 2 to
any or all aliens described in subclause 2 and
such designations are under the sole
discretion of the AG. Thus, clear language of
statute says that anyone who is not under
parole or who has not been admitted into the
U.S. is expeditiously removable.
We do not have an open border removal
system. We have certain rules and
regulations concerning aliens into this country.
They are not entitled to full DP
Knauff court said that whatever the procedures
it, it is DP. Thus, these aliens are
Inadmissible. Mezei takes this even further
and holds that we can hold aliens for an
indeterminate time if they are deportable.
Judicial review of expedited removal orders
under INA § 235(b)(1) is severely limited.
A court may review such orders only in habeas
corpus proceedings and the statutory text
would limit review to certain issues:
• Whether the petitioner is not an
alien ordered removed under §
235(b)(1) and
• Whether he can prove by a
preponderance of the evidence that
he is a permanent resident, was
admitted a s refugee, or granted
asylum.
Court can only look at this case under habeas
corpus review. Ursula can only contest this
case if she was seeking asylum or refugee
status. If she wants to appeal, she has to go
to the BIA and contest it under procedural
grounds, not on constitutional grounds.
 55

IMMIGRATION LAW OUTLINE – SPRING 2005 – J. Liu

Chapter 6 – Deportability and Relief from Removal p. 535-620

Chapter 7 – Removal Procedures p. 621-789

CHAPTER 6 – p. 535

§A Deportation Power

(H) DEPORTATION

- Deportation (expulsion): removal of a noncitizen who has entered the U.S. Began w/ Alien and
Sedition Acts of 1798 that authorized Pres. to deport alien enemies and aliens “dangerous to
the peace and safety of the U.S.” Controversial.
- Fed. govt. became involved in reg. of immig. Created deportation statutes to supplement laws.
- 1907 Amdmt: authorized deportation for post-entry acts.

- § 237: DEPORTABLE ALIENS p. 256-265 – upon order of Atty General, can deport:
inadmissible, criminal offenses (most common), failure to register/falsification of docs, security,
public charge, unlawful voters. Waiver for victims of domestic violence.
- only applies to those that have been admitted (entrants without inspection – EWIs – not
deportable, inadmissible §212).
- significant increase in resources devoted to detention/removal – increased. 100K in ‘01/’02.

DEPORTABILITY applies only to those aliens who have been admitted and for whom grounds
of deportability apply. INA § 237(a). Definition is found in §101(a)(13).
EXCLUSION (inadmissible) applies to noncitizens present in this country without having been
inspected and admitted.

§A THE DEPORTATION POWER

Constitutional Perspectives:

BUGAJEWITZ V. ADAMS, 1913

- writ of habeus corpus discharged – affirmed. Act is valid.
- Act of March 26, 1910 is not violation of constitutional rights. Ordering deportation of
alien woman found practicing prostitution after entering U.S. is with Congressional power. Can
deport aliens whose presence Congress deems hurtful to U.S. Doesn’t have t harbor unwanted.
- 1907 Act req. 3-yr. time limit for deportation after entry for prostitution – eliminated in
1910 – 3-yr. clause struck out.
- Principles: No concern over retroactive application (ex post facto clause of Const.
doesn’t apply to deportation statutes) and deportation not punishment for crime.
- Regardless of if alien entered lawfully or unlawfully, Congress has power to authorize
deportation of noncitizens for post-entry acts.
- Deportation proceedings distinct from crim. proceedings.

- counter: deportation is punishment – distinguished to protect Congress’ immig. power from

limits Const. places upon criminal proceedings.
- ex post facto doesn’t apply – noncitizens can be deported for conduct at the time committed
was not a deportable offense. Not punishment, so not subject to ex post facto clause.
 56

- Galvan v. Press, 1954: deported for past affiliation w/ Communist Party based on new statute.
deportation ground had retroactive applicability.

- Harisiades v. Shaughnessy, 1952: Const. norms don’t apply to deportability. Can’t claim 1st
Amdmt. to challenge deportation. Bill of Rights applies when it’s not immig. (i.e. criminal)
- Congress ultimately has plenary power over immigration issues. Ct. interprets
narrowly. [Frankfurter: for Congress to determine even if offend tradition and jeopardize peace]

Constitutional protections that lawful aliens have:

Based on the distinction that aliens
1) criminal ex post facto laws have not pledged allegiance to the
2) Habeas corpus US and thus are removable
3) 5th and 6th amendment in bill of rights Government has power to terminate
4) Due process its hospitality (Fong Yue Ting)
5) Equal protection of the laws (Yick Wo)
6) 1st amendment

- American-Arab Anti-Discrim Comm. v. Reno, 1995: S.C. has held that Bill of Rights does
apply to resident aliens. Diff. than seeking to enter. 2 LPRs had 1st amdmt. protection.
- 1st amendment freedom of association (with identified terrorist org.) protects permanent
residents and citizens equally in the deportation context. Not participating, just associating.
- Congress’ plenary power over immig. doesn’t justify lower 1st amdmt. standard.
already in U.S., entitled to protection. 1st amdmt. says “persons,” not citizens only.

- INA §237(a)(4)(b) allows the INS to deport an alien for terrorist activities engaged in after
arrival or during arrival for participation individually or in group.

2) GROUNDS OF DEPORTABILITY
§237 – list of traits and acts Congress deems undesirable.
- EWIs – inadmissible (§212), not deportable (§237) in 1996 Act. no inspection given.
- distinct – inadmit. are at port of entry. deportable are in and admitted.
- grounds could be before entry, after, both, or within certain number of years since entry.

- Court has generally read deportation statutes quite narrowly b/c stakes for the individual are
considerable and the court will not assume that Congress meant to trench on his freedom
beyond that which is required by the narrowest of several possible meanings of the words used.

a) IMMIGRATION CONTROL-RELATED GROUNDS FOR DEPORTATION

i) Inadmissible at time of entry and adjustment of status –
♦ §237 (a)(1)(A) p. 256
e.g., fraud and
willful misrep. in ♦ lets govt. expel noncitizens who had no right to enter.
alien’s own visa Inadmissible at time of entry or adjustment of status.
application ♦ No statute of limitations on this “delayed exclusion”
 57

♦ Fact that alien passed through inspection (mistake) doesn’t

prevent deportation. If never inspected, then an EWI that’s not
subject to deportation, but subject to inadmissibility hearings
♦ Waiver if close relatives in U.S. - §237(a)(1)(H).

ii) Presence in the U.S. in violation of law –

♦ §237(a)(1)(b) p. 257.
♦ Any U.S. law violation is deportable – including
nonimmigrant overstays.

iii) Failure to maintain nonimmigrant status (also applies overstays)

♦ §237(a)(1)(c)(i) p. 257
♦ INA §237(a)(1)(c)(i) provides for the deportation of
nonimmigrants who fail to maintain their status or violate the
conditions of their admission. i.e. overstays, students,
unauthorized workers.
iv) Document fraud
♦ §274(c) p. 262
e.g., LPR who ♦ Imposes civil and criminal penalties on persons and
sells fake green
entities that engage knowingly in various types of fraud in
cards
connection with immigration-related documents
♦ No automatic hearing, must be requested. Atty General
has discretion to waive clause – waiver unreviewable by Ct.

b) CRIME-RELATED GROUNDS FOR DEPORTATION - p. 259.

- growing emphasis on swift deportation of noncitizens convicted of crime. expansive def. used.
~40K noncitizens deported for criminal grounds each year.
- Deals with convictions, not simply for committing a crime.

i) Crimes involving moral turpitude –

§237(a)(2)(a)(i) p. 259

- states that an aliens deportable for a crime of moral turpitude within 5 years
after entry (10 years for LPR’s) and conviction sentence can be one year or
longer.

- problem: there’s no workable def. of what’s “moral turpitude.” Most popular def.
is from Black’s dictionary: “act of baseness, vileness, or depravity in the private
and social duties owed to fellow man.”

GOLDESHTEIN v. INS, 9th Cir., 1993.

- Appeal from INS deportation decision. P (Israelian citizen/married LPR) convicted of
structuring financial transactions to avoid currency report. Claims no moral turpitude violation
occurred for deportation ground. INS says crime had element of fraud, so involves moral
turpitude.
 58

- P met standards b/c 1) pleaded guilty to act of moral turpitude within 5 years after entry and 2)
sentenced to prison for more than a year [concurrent 40-month terms].
- 9th Cir. holds crime does NOT involve moral turpitude b/c intent to defraud is not essential
element of the crime, not inherent to crime. Not deportable. Committed act – not immoral.
- “moral turpitude” determined by the Court. Common law has broad guidelines.
- issue is that lack of precise definition doesn’t give notice of deportation ground.

ii) Controlled substances – (drugs offenses)

§ 237(a)(2)(B) p. 260.
- INA mandates: The deportation of any alien convicted of any violation related to
controlled substances.
- It was amended in 1990 by Congress to include any alien who is a drug abuser
or addict, even those who have not been convicted
- exception for possession of less than 30 grams of marijuana.

FLORES-ARRELLANO v. INS, 9th Cir., 1993 – broad scope of drug offenses

- Flores entered the U.S. as a permanent resident in 1990. All of his parents/siblings are LPR’s.
After the INS issued an order to show cause charging Flores with deportability on the basis of
his conviction for being under the influence of drugs, Flores argued that “use” convictions were
excluded from deportability. Pleaded guilty to use and under the influence.
- Held that a lawful resident alien convicted of use or being under the influence is deportable as
one convicted of violating “any law…relating to a controlled substance”
- Plain language of the statute §237(a)(2)(b)(1) of the INA reaches under-the-influence
convictions. Provision is not ambiguous nor does its plain language lead to absurd results or
internal statutory inconsistencies. “any law” lang. encompasses all.
- Flores arguing precedent (1986 amdmt. substituted broader lang. to statute) didn’t include his
case and said he “used,” but didn’t “abuse.” Also arguing that since exception exists for 30 g
possession of marijuana, should also allow exception for one-time use of marijuana. Ct. says
doesn’t matter – he wasn’t using marijuana.
- Concur: Consider whether purpose is to stop drug trafficking. Deport 1-time users than?
Seems like deportation is a harsh and excessive punishment.

No Judicial (i) Aggravated Felonies – added to INA in 1988 Act to target drug
Review of Atty trade
General
♦ 237(a)(2)(a)(iii) p. 259 (deportability ground)
decision
♦ INA § 101(a)(43) – all crimes defined as AF – p. 36-39
237(a)(2)(A)(iii) or INA § 101(a)(43) allows the deportation
of any alien who is convicted of an aggravated felony at
Under INA § 238 (b)(2)
any time after admission.
(A), and (B),

nonLPR’s and - 1996 Act made AF statute RETROACTIVE.

conditional permanent
residents are subject to
expedited removal if
they have been
convicted of an AF.
- This statute is harsh b/c it allows an alien who has been in the
U.S. for 20 years to be deportable for an aggravated felony.
Consequences of aggravated felony convictions are harsh:
 59

1. Not eligible for most forms of relief from deportation. i.e.

asylum, cancellation of removal, or voluntary removal.
2. No judicial review of deportation orders
3. Barred from life from re-entering without the AG's consent
4. Subject to removal procedures under INA §238(b) if not LPR.

- Issue of uniformity: state criminal offenses included as AF is inconsistent. Conduct in 1 state

might cause deportation (i.e. diff. sentencing time) that wouldn’t in another state.
- Solution – states should defer to authority/interpretation of federal court.

- Can AF definition include criminal offenses that are not felonies? §101(a)(43)(F) – p. 37
- F includes “crime of violence” [physical force against person or property] for which term
of imprisonment is at least 1 year is part of AF definition.

GUERRERO-PEREZ v. INS, 7th Cir, 2001 – convicted of misdemeanor under IL law

- INA finds P removable for AF definition. Moved here at 2 months from Mexico – an LPR. Pled
guilty to criminal sex abuse for having sex with 15 yo girl when he was 19 – misdemeanor in IL.
Rec’d sentence of 30 days and 2 yrs. probation. INA defined crime as AF – removable.
- Ct. holds that misdemeanor conviction under local law can be AF by definition under INA.
- Legislative power of Congress is complete over admission of aliens (plenary). Fiallo v. Bell.
Control stems from Const. grant – Art. I, §8 cl. 4. – establish Rule of Naturalization.
- Relying on INA - §101(a)(43)(A) defines AF to include sexual abuse of a minor.
- Broad definition used – no Congressional intent to limit AF to local law definition.
- AF is serious issue to Congress – lose many privileges. Wants it broad – not for judic. to say.

- HYPO: driving under the influence – no current INA provision lists DUI as deportability ground.
- INA has argued “moral turpitude” – DUIs are necessarily morally reprehensible.
- under AF: “crime of violence” b/c DUI is substantial risk of harm to person/prop.

- Thirteen states currently req. Ct. to inform noncitizens of deportation possibility if guilty plea
entered. In rare case, noncitizen can withdraw plea. i.e. if counsel misinforms.

- definition of conviction: §101(a)(48)(A) – p. 40 “a formal judgment of guilt”

- usually expunction will not affect deportation, can get pardon from gov. or Pres.
- passage of time: moral turpitude is grounds for deportation if within 5 yrs of admission. Other
grounds don’t have this “statute of limitations.”
- also, some want limit on years after crime that noncitizen can be deported. i.e. no
retroactive violations being grounds for deportation.
- some argue that deportation is not a punishment, so no limit on time necessary.

Consequences of Removal
- if deported, can’t re-enter for 10 yrs. w/out Atty General’s permission. Compare to only 5 yr.
ban if person removed at time of arrival.
- noncitizen deported more than once must wait 20 yrs. for reentry.
- AF violation faces lifetime bar (except if AG permission allows application for re-entry).
- If noncitizens fail to depart after final removal - $500/day fine. INA §274D – never used.
 60

1. RELIEF FROM REMOVAL

This section will examine the various provisions in the INA that provide relief from removal.

In the majority of removal hearings, the eligibility for such relief is

the only issue: The alien will concede deportability at the outset of
the hearing, and then request some form of relief from removal.

- Relief requires two elements:

1. statutory eligibility: min. requirements that must be met.
2. exercise of govt. discretion: some who meet req. may still be denied relief. need
favorable exercise of discretion by Atty. General. Each case judge on own merits.

REGULARIZATION OF STATUS – b/c of ties to U.S., can receive relief granting LPR status.
Most aliens prefer establishment of permanent resident status as form of relief from removal.

a. Cancellation of removal: §240A – p. 279

- In past, Atty. General could suspend deportation, but Congress had say. NOW:
available to any deportable noncitizen who meets req. of: length of time in U.S., good moral
character, showing of extreme hardship). No more congressional participation.

For LPRs - INA § 240(A)(a)

- AG may cancel removal in the case of an alien who is Inadmissible or deportable from
the us if the alien:
1. Has been an alien lawfully admitted for permanent residence for not less than
5 years
2. Has resided in the U.S. continuously for 7 years after having been admitted in
any status, and
3. Has not been convicted of an aggravated felony.

For non-LPR’s - INA § 240 (A)(b)

A. physically present for at least 10 yrs. [must be present, not just reside]
B. person of good moral character during such period [undefined]
C. has not been convicted of an offense under 212(a)(2) [criminal grounds]
D. establishes removal would result in exceptional and extremely unusual
hardship to spouse/parent/child who is citizen of U.S. or LPR.

- Period of continuous residence or physical presence necessary for relief under 240(a) ends
with the service of notice or with the commission of a criminal offense that renders the alien
Inadmissible or deportable. i.e. during deportation proceeding, not counting toward 10 yrs in
U.S. – became incentive for stalling. 240A(d). p. 283
- Judicial review of decisions to deny cancellation is restricted. 242(a)(2)(B). p. 301

IN RE GONZALEZ RECINAS, BIA, 2002 – P arguing exceptional/extremely unusual hardship.

- native/citizen of Mexico; single mother of 4 U.S.-citizen kids; parents are LPR; siblings are
citizens. Entered in 1988 on non-immigrant visa, overstayed, now being removed.
- Immig. Judge said P failed to demonstrate EEUH – alien must show spouse/parent/child would
suffer hardship beyond what’s normally expected.
 61

- Factors considered when deciding cancellation of removal: age, health of family members,
how lower standard of living will affect qualifying family members.
- no relatives in Mexico, all family in U.S. Kids don’t speak Spanish. Kids entirely dependent on
mother and Mexico won’t provide for employment, housing, and emotional needs.
- totality of circumstances and hardship from mother to kids demonstrates EEUH.

- BIA determines hardship narrowly and assesses solely on qualifying relatives, not to self (1996
amdmt) or extended family (grandparents, etc.)

- numerical limits on cancellation: 1996 amdmt. imposed cap – no more than 4000 each FY.
240A(e) p. 284.

- cancellation for victims of spousal abuse: special relief for battered spouses/kids. Batterer
must be U.S. citizen or LPR. 240A(b)(2) p. 281.

WAIVERS – use waiver (of excludability) from specified grounds of inadmissibility. 212(h) p.
136. deals with criminal inadmissibility grounds for LPRs.
- Can apply at 3 times: 1) applying for visa, 2) for admission, and 3) for adjustment of status
(used in relief of removal).
- BIA allowed waiver to apply b/c would apply in admission or status adjustment – stretched
statute to also include deportability.

PO SHING YEUNG v. INS, 11th Cir, 1995 – convicted of attempted manslaughter and found
deportable for crime involving moral turpitude. pled guilty, sentenced to 5 yrs. applied for
waiver of excludability (§212(h)) since married to LPR and had child.
- IJ said ineligible since waiver is remedy applicable to exclusion proceedings.
- appealed on basis of const. right to “equal protection” since BIA applied waiver to deportation
before. Ct. held 5th amdt. applies b/c Congress has plenary power to regulate immig. Fed.
statute upheld under rational basis test – ok if not arbitrary or unreasonable.
- BIA couldn’t treat Po diff. b/c he failed to depart and re-enter to get adjustment of status.

- waiver was tightened and made consistent with cancellation of removal by adding 7 yr. rule
and barring aggravated felons from possibility of waiver.

REGISTRY - § 249 – p. 343. Creates record of lawful entry for permanent residence. Purpose
is to legalize residence of noncitizens who had entered improperly or who couldn’t locate record.
- if qualify, creates record of entry. Eligible to anyone who entered before ’72, has had
continuous residency, is a person of good moral character, and no aggravated crimes.
- helps illegals create legal permanent resident status.

PRIVATE BILLS – used to be primary form of relief from deportation. Bill introduced to
Congress to help alien faced w/ deportation. Can sometimes become law. Today, private bills
not as successful. i.e. Elian Gonzalez’s deportation was not stayed by private bill.

- If can’t get relief by LPR status – other relief from removal includes: [didn’t discuss]
1. voluntary departure – § 240B – p. 284. most common form of relief. Works like a
plea bargain for govt. Alien waives full removal hearing in return for statutory advantage of
departing (i.e. can return sooner). Helps manage dockets for removal hearings.
2. Prosecutorial discretion: immig. authorities decide not to place proceedings.
 62

3. deferred action status: presence of deportable aliens tolerated if action is

unconscionable due to humanitarian considerations. Limited rights.
4. stay of removal: INS can stay for such time and conditions deemed appropriate.

REMOVAL PROCEDURES – CHAPTER 7

- Ch. 5 deals with due process at “port of entry” (noncitizens trying to get admission). This Ch.
deals with due process when govt. trying to remove noncitizens who have been admitted or who
are inside U.S. even if they weren’t admitted.

§A – CONSTITUTIONAL REQUREMENT OF DUE PROCESS

- S.C. unwilling to scrutinize Congressional procedures for exclusion (at port of entry).
- “whatever the procedure authorized by Congress is, it is due process as far as the alien
denied entry is concerned.” Knauff/Mezei
- S.C. more favorable to noncitizens inside the U.S. – Const. rights violated b/c 5th amendment
due process clause applies.
- Note that Const. provisions guaranteeing proceedings for criminal defendants is NOT a
valid argument b/c Cts. see removal as civil in nature, not criminal. Fong Yue Ting.
DUE PROCESS DOES NOT REQUIRE A HEARING - an informal investigation will suffice.
Expulsion after summary investigation does not violate due process. Japanese Immigrant .
- Fong Yue Ting also held that due process necessary, but is simply an “opportunity to
be heard” and not necessarily a judicial procedure.

THE JAPANESE IMMIGRANT CASE (YAMATAYA v. FISHER), S.C., 1903 -

- P was Japanese national who entered the U.S. in 1901. Several days later, the immigration
inspector, after investigation, concluded that she was deportable b/c she had originally been
excludable as a person likely to become a public charge (poor). Her expulsion was ordered.
She petitioned for a habeas corpus, contending that she had a DP right to a hearing since she
did not understand English, did not understand that the investigation involved her deportability,
and was not assisted by counsel, and had no opportunity to show she wasn’t deportable.
- Held that expulsion after summary investigation does not violate due process.
- It is without question that Congress may exclude an alien on any basis it desires.
- Due process, while generally implying some sort of judicial procedure, does not necessarily do
so. It does not require a hearing, and an informal investigation will suffice.
- If an alien believes that the investigation was insufficient, his recourse is with the agency (not
govt.) administering the deportation.
- Petition denied b/c due process of law was valid and Ct. held she knew interview was
regarding her status in country. Also recognized English wasn’t proficient, but that’s “her
misfortune” and doesn’t constitute a reason under act of Congress or law to intervene.

- Ct. ruled that due process does apply to deportation hearings, but broadly and slightly.
- due process does not apply to exclusion!! The Knauff-Mezei doctrine established that
although citizen and noncitizens have a right to due process, an extraterritorial alien has no right
to due process. See Ch. 5 Knauff/Mezei cases.

- Cts. usually apply closer scrutiny towards procedural Constitutional challenges than
substantive (deference to Congress).
 63

Modern test to determine what process is due: in evaluating whether the procedures
in any case meet requirements of the Constitution, courts must balance these factors:
1) The interests at stake for the individual,
2) The interest of the government in using the existing procedures
3) The gain to accurate decisionmaking that can be expected from added procedural
protections.
See Mathews v. Eldridge, 1976.

§B REMOVAL PROCEEDINGS – Hughes made it clear that this section is NOT on the exam.
Basic points:
- Since 1996 Act, exclusion and deportation proceedings is a single removal hearing for
both inadmissibility and deportability. INA § 240.
- If DHS wants to initiate removal, commands “Notice to Appear” Form I-862 before an
Immig. Judge. Proceedings in 2 stages: 1) master calendar hearing and 2) indiv. merits
hearing.
- For noncitizens in removal, impt. question is whether to release or detain while
proceedings are pending. Detention sometimes necessary to enforce removal orders.
- An alien in a deportation hearing is not necessarily entitled to appointed counsel. Are
told that what they say can be used against them, but are not given right to remain silent.
- Alien’s right to reopen removal proceedings based on situation of case.

§C DETENTION – an obvious restraint on personal liberty that shouldn’t be imposed w/out good
reason. Seems indistinguishable from a prison sentence, creates separation, disrupts lives,
very costly, and limits ability to obtain legal representation. Still, sometimes necessary.

Purposes of detention:
1) Important to make sure that noncitizen appears for removal hearings
2) Important to ensure that the alien will actually leave the U.S. if ordered removed
3) Some aliens are removed b/c they pose a risk to society – detain to minimize risk.
4) Acts to enforce the immigration system/law. Otherwise, noncitizens might just come
and stay as long as they can before removal. Restores credibility in system.

- Nov. 2000 – INS established uniform standards for housing facilities for detainees. In 2002,
Homeland Security Act transferred authority of juveniles to Dept. of Health – Office of Refugees.

1. STATUTORY OVERVIEW
- Arriving aliens not in expedited removal “shall be detained” according to INA §235(b)(2), p.
248. Four levels or priority for detention: required, high, medium, and low priority.

- However, they may be released on parole in certain cases: 8 C.F.R. §212.5

(1) Serious medical conditions
(2) Pregnant women
(3) Certain juveniles
(4) Aliens who will be witness in government proceedings in the U.S.
(5) Aliens “whose continued detention is not in the public interest.”
 64

- Conditions of release could include bond – for bond, alien must demonstrate to the
satisfaction of the officer that such release would not pose a danger to property or persons,
and that the alien is likely to appear for any future proceedings. See 8.c.f.r. § 236.1(c)(2)

- INA § 236(a), p. 252 – aliens other than arriving aliens may be detained or released on
their own recognizance or on bond (min. $1500). Factors considered in bond hearing
include the noncitizen’s employment history, length of residence in the community,
existence of family ties, record of appearance or nonappearance in court proceedings, and
previous criminal or immigration law convictions.

- MANDATORY DETENTION - INA § 236(c)(1), p. 252. Added in 1988, but broadened in

1996. Provides that the following aliens, including LPRs, must be detained and may not be
released (mandatory detention):
a) Aliens covered by the terrorist grounds
b) Aliens removable on criminal grounds (moral turpitude, aggravated felony,
controlled substance, firearms, or “miscellaneous crimes.”
- §236(c)(2), p. 253 - only exceptions would be release for witness protection or cooperation
– and then only if detainee is neither security risk nor flight risk.

- After 9/11 – USA PATRIOT Act added INA § 236A, p. 254 – Mandatory detention of
suspected terrorists. Provision requires detention of specified noncitizens reasonably
believed to be involved in terrorism for up to 7 days b/f placing them in removal
proceedings or filing criminal charges. Detention req. certification by Atty. General.

- Diff. rules govern detention AFTER removal order. INA § 241(a), p. 288.
- removal must take place w/in 90 days “removal period.” During period, AG
shall detain alien and may not release those found inadmissible or deportable
under criminal or natl. security grounds. INA 241(a)(2).
- If removal doesn’t take place during 90 days AG has discretion to release
noncitizen under supervision. INA 241(a)(3). i.e. Zadvydas v. Davis.

2. CONSTITUTIONAL LIMITS
- Look at constitutional limits on detention in two settings:
1) Indefinite detention when a removal order has been issued but the noncitizen cannot
be removed [issue reached the S.C. first]
2) Mandatory detention pending removal proceedings

A. Indefinite detention AFTER a final removal order:

- Mezei: S.C. approved indefinite detention of an excludable alien (w/out any judicial testing of
the substantive merits or procedural validity of detention order) b/c aliens under final removal
order seen to have same status as excludable – so no due process owed. BUT Wong Wing v.
U.S. (1896) limits the reach of Mezei IF noncitizen can characterize detention as criminal
punishment.
- In past, issue of indefinite detention not an issue. Then, in 1980, Cuba refused to take back
Cubans w/ criminal records (known as Marielitos after the port they left from).
- U.S. had to use Status Review Plan to filter out and release some of the detained.
Marielitos face possibility of endless confinement b/c excluded, but Cuba won’t take them back.
- Barrera-Echavarria v. Rison, 1995: Mariel Cuban who arrived in 1980. Orded
excluded, but Cuba wouldn’t take back. Confined since ’85. 9th Cir. said govt. does have
 65

statutory authority to detain P indefinitely. Ct. hesitates to interpret ambiguous statute as

requiring release of alien. Also, excludable aliens have limited Constitutional protections. Ct.
said annual reviews mean detention isn’t indefinite/permanent. No violation of intl. law either.
- Jean v. Nelson, 1984: excludable aliens unwanted in their home country shouldn’t be
req. to be released. Approach would result in U.S. losing control of its borders.

- Immigs. from Cambodia/Vietnam/Laos also “stateless” – their countries won’t take them back.
Most were LPRs who committed crimes, ordered removed, and now indefinitely detained.

ZADVYDAS v. DAVIS, S.C., 2001 – Typically, when final order of removal entered, alien
removed w/in 90-day period. INA §241(a)(6) authorizes detention past 90 days (if removal still
likely) or supervised release of certain aliens – must have review to determine situation after 90
day period; another review in three months; another review w/in a year.
- Zadvydas is resident alien. Ordered deported in ’84 for criminal record and history of
flight from criminal/deportation proceedings. Home country wouldn’t take back. INS argues
eventual deportation is still possibility since P is applying for citizenship.
- Ma (shared petitioner) is resident alien detained for criminal record. U.S. has no
repatriation agreement with Cambodia – no realistic deportation option. Const. forbids post-
removal-period detention permanently.
- Ct. held that aliens have already entered U.S., so entitled to Due Process Clause
protection (5th amdmt.). Statute does NOT permit indefinite detention – “may” lang. of statute
doesn’t suggest unlimited discretion.
- Once removal is no longer reasonably foreseeable, cont’d detention no longer
authorized by statute. Alien should be released under supervision pending deportation.
- After 6 month period, if alien shows good reason there’s no significant likelihood of
removal in the reasonably foreseeable future, govt. can rebut or must release.
- DISSENT: AG has clear statutory authority (“may”) to detain criminal aliens for no
specified time limit. No Const. right b/c no right to be in U.S. since under final order of removal
(Mezei). Says Wing Wong only holds that aliens subject to deportation can’t do hard labor w/out
trial.
- DISSENT: Ct. committing Const. error by writing statutory amendment, disregarding
Congressional intent (plenary power over immig. law), releasing dangerous aliens, harming
Exec. foreign relations (repatriation talks), and disrupting balance of power. “reasonably
necessary” lang. of Ct. isn’t in statute, contradictory, and implausible. Congress gave AG
discretion – not job of judiciary to change statute. Express authorization given to detain “beyond
removal period.” Congress chose not to put detention limitations in statute. Can detain to avoid
flight or danger to community. Procedures to review alien cases ensures due process rights.

- At time of case, INS was holding 3,000 aliens in indefinite detention.

- The constitutional norm is unreviewable plenary power of Congress, but Zadvydas seems to
borrow public norms as constitutional norms and use them to interpret statute.
- Zadvydas reaffirmed “constitutional borderline” of Mezei by distinguishing b/w const. rights of
noncitizens at the U.S. border and those located in U.S. Both aliens in this case were admitted.
- Reality is that only 40% released. in Nov. 2001, DOJ issued regs for post-removal order
custody review. Alien had to show cooperation in getting docs and no significant likliehood of
removal in the reasonably foreseeable future. Then could be released.

- Four categories can still be detained: [from DOJ Regs post-9/11]

1. aliens with highly contagious disease that threatens public safety.
2. aliens whose release will cause serious adverse foreign policy consequences
3. aliens detained on account of security and terrorism concerns
 66

4. aliens determined to be specially dangerous.

- Conditions of release – govt. may require reasonable bond as long as it doesn’t prevent alien’s
release. Could also req. annual reports to enforcement authorities under “supervised release.”
§ 241(a)(3). Based on regs, DHS may take alien back into custody for violating conditions.
- Most Cts. still allow indefinite detention of unadmitted aliens as constitutional. Mezei.
- Salerno suggests a “balancing test” to decide when indefinite detention is allowed. i.e.
dangerousness, national security.

b. Detention pending removal proceedings – INA § 236(c) p. 252

- INA § 236(c) provides that the following aliens, including LPRs, must (“shall”) be detained and
may not be released (mandatory detention): aliens covered by terrorist grounds and removable
on criminal grounds.

DENMORE v. KIM, S.C., 2003 – Kim, citizen of S. Korea, is LPR who was convicted of first-
degree burglary and petty theft w/ priors. INS charged him deportable and detained him
pending removal under §236(c) which req. detention of aliens convicted of specified crime and
prevents release on bail pending final determination of deportability.
- Kim filed habeas corpus action challenging constitutionality of §236(c). Argued
detention violated due process b/c INS made no determination that he posed a danger to
society or is a flight risk.
- S.C. holds that §236(c) is constitutional b/c Congress is justifiably concerned that
criminal aliens don’t continue to engage in crime of fail to appear in removal hearings. Provision
was initially adopted to control increasing rates of crime by aliens – detention necessary.
- more than 20% of deportable criminal aliens fail to appear for removal hearings after
release. Studies show detention of criminal aliens is best way to ensure removal.
- Congress has broad power over immig.; therefore, it can make rules that would
be unacceptable for citizens.
- Aliens are entitled to due process, but detention during deportation process still valid.
- Finding of dangerousness not necessary to detain deportable alien.
- Diff. from Zadvydas b/c removal is still a possibility for Kim. Detained pending
proceeding. Because evidence proves large portion of aliens skip hearings, detention is const.
- Majority implies that alien should have petitioned for hearing to argue “burglary” not in
mandatory detention category, rather than file habeas petition challenging §236(c) itself.
- CONCUR: alien must be deportable for §236(c) to be valid. INS must have merit to
deportation charge and detention must be reasonable.
- CONCUR: S.C. doesn’t have jurisdiction (judicial review) to set aside discretion of Atty
General in detaining criminal aliens under §236(c) while removal proceeding is ongoing.
- DISSENT: INS didn’t have merits b/c never found that Kim needed to be detained to
ensure his appearance or to prevent danger to society. Never conceded to removability crime.
Permanent residents have due process right to liberty from personal confinement (habeas
corpus) and can’t be locked up for no reason. LPR part of U.S., established, so deserve Due
Process Clause protection greater than other aliens.
- The 5th amdmt. permits detention only where heightened, substantive due
process scrutiny finds a sufficiently compelling govt. need. Must have indiv.
determination b/f detention. Can’t use class of people for confinement on a
categorical basis and deny members of the class indiv. due process.
- Detention can be no more time than what’s reasonably necessary. Zadvydas.
- DISSENT: Kim didn’t concede deportability. Claims that his convictions don’t fall under
§236(c). Deserves bail so long as he’s not dangerous or a flight risk. Deserves bail if
deportability in doubt. Should interpret statute to permit detained alien to seek individualized
assessment of flight risk and dangerousness.
 67

- Before Kim decided, Atty General issued decision in Matter of D-J- (2003) holding that Haitian
asylum seeker and those “similarly situated” could be detained w/out bond for natl. security
reasons. Decision was considered individualized determination – unlike Kim.
- Those seeking admission (incl. LPRs trying to return) may not obtain individualized bond
determination by an immig. judge. Again shows diff. b/w arriving and those already here.

§D Court Review – need complex mechanisms for admin review b/c personal consequences
of immig. decision are severe. Actions of fed. agencies are subject to review by courts unless
Congress has foreclosed review in certain categories of cases.
- Approx. 4K lawsuits/yr are filed against govt. in immig. cases asking for judicial review.
- Conflict is that govt. wants to ensure correct application of laws (thru judicial review),
but don’t want to let noncitizens abuse judicial review to prolong stay. How to balance?

1. Brief History – now, §242 p. 301

- Since 1891, fed. statutes have regularly stated that orders of exec. branch officers in
deportation and exclusion cases final. Eventually, Cts. heard cases, but standard of review
favored govt. Even having judicial consideration was significant though – chance to be heard.
- 1961: Fed. Cts. are of limited jurisdiction, but writ of habeas corpus [Art. I, §9, cl. 2] created
need for judicial review. Any physical restraint, custody, of noncitizen falls under habeas.
- 1955: S.C. held that noncitizens could also get judicial review through 1946 Admin. Procedure
Act – could now contest deportation/exclusion w/out going to jail (basis of habeas). 2 avenues
available: 1) habeas and now 2) APA.
- 1961: INA § 106 [p. 53, replaced by §242] – Congress established statute specifically
governing review of exclusion and deportation orders.
- For exclusion, habeas only - §106(b).
- For deportation, created Hobbs Act as “sole and exclusive” procedure for judicial
review of deportation orders – takes issue out of district courts and puts it in the courts of
appeals - §106(a). Issue goes from agency to Ct. of appeals.
- 1996: Act adopted new judicial review scheme in INA §242 p. 301. Barred judicial review for
certain types of cases and eliminated separate systems for exclusion and deportation. Now,
single scheme reviewable in fed. Ct. of appeals.
- alien may now initiate or continue Ct. review after leaving U.S. §242(b)(3)(B).

- 1996 Act created provisions called “court-stripping amendments”: [from class]

- these provisions are constitutional b/c alien can still rely on habeas for Const.
protection through judicial review.
- Purpose of 1996 Act was to fix court review scheme so it was less elaborate (now one
system), less time-consuming (consolidate review), and to bar review altogether for
some cases.

a. No review of removal if it’s based on aggravated felony. INA §242(a)(2)(C).

Technically though, Cts. still review issue b/c have to define what falls in “aggravated
felony” category. If behavior is AF, then no judicial review allowed.

b. No review of a discretionary decisions except for asylum. i.e. waivers: cancellation of

removal, voluntary departure, or adjustment of status can’t be reviewed. §242(a)(2)(B)
(i) p. 301
- AG’s discretionary decision is not up for judicial review. §242(a)(2)(B)(ii) p. 302
 68

- Exception: asylum. If alien meets qualifications to be a refugee and AG refuses to

give asylum on discretionary reason – CAN go to judicial review. Asylum is only
appropriate if alien is physically present and in U.S. for less than a year. AG’s discretion
to grant asylum “shall be conclusive unless manifestly contrary to the law and an abuse
of discretion.” §242(b)(4)(D) p. 303.

c. “Zipper clause” – provides for consolidation of all issues that allows review only upon
final order of removal. Must complete removal process before asking fore review.
§242(b)(9) p. 305.
- Ct. unable to STOP removal proceedings. no review until proceedings commence.
- “zipper” b/c all of your complaints about removal have to be enclosed in one garment.
Can’t argue issues piecemeal – final order must have occurred.

How to get to judicial review:  administrative appeals process INA §242(b)(2)

(i) First court to look at a case is the administrative agency, the INA (immig. judge).
(ii) 1st appeal is to BIA
One thing to remember is that from the BIA, a case could be reviewed by the Atty. General in
three situations:
(a) When the AG herself directs that she wants to review it
(b) When the INS sends the case to the AG
(c) When the chairperson or the majority sends something to the AG
(iii) judicial review is principally in the federal courts of appeals. It means therefore
that the factual record is developed at the administrative agency (the IJ and the
BIA)
- §242(d)(1): alien must exhaust admin. remedies before asking for judicial review. allows
agencies to develop facts, apply law in which they are particularly expert, and to correct their
own errors. Ensures that any judicial review will be informed and narrowed by agency.

2. Limiting Review – INA § 242(a)(2) p. 301

- Congress rarely enacts jurisdiction-stripping provisions, but does have the power – Art. III, §§
1,2 in Const. Congress may deny the fed. cts. the power to hear specific types of cases.

a. Review under the INA

- judicial review is completely barred in certain cases.

KOLSTER v. INS, 1st Cir., 1996 – Deals with Antiterrorism and Effective Death Penalty Act of
1996 AEDPA § 440(a). Later superseded by the 1996 Act.
- 1st Cir. held that section 440(a)’s deprivation of jurisdiction for any finding or order of
deportation against criminal aliens applies to petitions that were pending on the date of the
AEDPA's enactment. Thus, the prohibition of judicial review does not offend the constitution.
Kolster v. INS
- On April 24, 1996, the AEDPA was signed into law, prohibiting judicial review of
deportation orders issued against aliens who have committed certain types of crimes.
- Kolster pled guilty to drug possession crime and filed a petition with the 1st Cir. on Feb. 28,
1996, 2 months before the AEDPA was signed into law. He argued that the BIA decision that
he was ineligible for discretionary relief from deportation was erroneous b/c § 440(a) does not
apply to cases already pending on the date of the AEDPA’s enactment.
- §440(a) constitutional b/c habeas review of core const. issues still available to alien.
- Ct. held that section 440(a) does apply to petitions that were pending on the date of the
AEDPA’s enactment and is Constitutional. Petition for review denied for lack of jurisdiction.
 69

- Since some avenue for judicial review remains available to address core constitutional and
jurisdictional concerns (habeas), we find that section 440(a)’s repeal of our jurisdiction to review
final deportation orders does not raise a constitutional issue.
- As the nature and scope of habeas corpus review is not properly before the court at that time,
they denied reaching those questions.
- Purpose of §440(a) was to prevent criminal aliens from abusing process and asking for waiver.

b. Habeas Corpus Review – barring of judicial review justified by fact that habeas still available
to alien. Neither 1996 Act or AEDPA specifically mentions general habeas statute.
- writ of habeas corpus [Art. I, §9, cl. 2]: “The privilege of Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

INS v. ST. CYR, S.C., 2001 – St. Cyr is Haitian citizen, LPR who pled guilty on March 8, 1996 to
selling a controlled substance – deportable violation. 1996 Acts were enacted AFTER he pled
guilty – D argues that restrictions on discretionary relief from deportation doesn’t apply to plea
made b/f enactment of 1996 statutes. Alleging habeas corpus violation made by AG
through error of law in deportation proceeding. INS disputes and also that District Ct. has
no jurisdiction.
- Ct. holds that district ct. retains juris. under general habeas corpus statute.
- judicial review allowed for questions of law in deportation proceedings and habeas
issues.
- some judicial intervention in deportation cases is unquestionably req. by the Const. (like
habeas). Necessary to review question of law over executive detention.
- for habeas cases, judicial review has historically been available.
- DISSENT: even if min. guarantee of habeas review is owed, alien in this case falls outside
scope.
- DISSENT: indisputable that 1996 statutes forbid all cts. from hearing claims of deportable
criminal aliens. Also, due process clause doesn’t req. judicial determination of the alien’s claim.
- 5th amdmt. guarantee of life, liberty, property guaranteed. In deportation proceedings, issue is
liberty when detained. St. Cyr ensure that Const. protection of habeas always available for
judicial review.
- Since alien still has right to challenge detention through habeas, court-stripping provisions are
constitutional/permissible.

- St. Cyr does NOT allow Ct. to use habeas review to “challenge purely discretionary (yet
arguably unwise) decision made by the Exec. branch that don’t involve violations of the Const.
or federal law.” Gutierrez-Chavez v. INS, 2001.
- §242 leaves habeas review intact – can do habeas review in district ct. instead of Ct. of
appeals. St. Cyr.
 70

(V) CONSTITUTIONAL PROTECTION AFTER ADMITTANCE:

ALIENAGE LAW

Alienage law concerns the constitutional protection of aliens after admission to the united states:
non-citizens may not 1) vote 2) hold federal civil service jobs 3) have limited access to state and
federal employment and 4) have limited access to public welfare. These distinctions force us to
think about the differences b/w membership and citizenship.

(A) PUBLIC BENEFITS

Congress has broadly declared as federal policy that lawfully admitted
resident aliens who become public charges for cause arising AFTER
THEIR ENTRY are not subject to deportation, and that as long as they are
here they are entitled to the full and equal benefit of all state laws for the
security of persons and property.
States can treat citizens differently if the state is protecting a public
interest in its common property or resources, but only with regard to
privileges, not rights. See Japanese Exclusion, Graham v. Richardson
Crane v. Ny held that a Ny state law prohibiting the employment of aliens
on public works projects was valid because the state’s special public
interest was to devote public funds to employ its own funds.
Japanese Exclusion held that aliens within the U.S. jurisdiction shall
have equal benefit of laws and proceedings for the security of persons
and property as is enjoyed by white citizens.
State laws limiting permanent resident aliens’ access to welfare benefits
violates the EPC. Graham v. Richardson.
State welfare benefits are a right and aliens are entitled to equal rights of
state citizens. Graham v. Richardson.
The admission of aliens, their naturalization, and the regulation of their
conduct are within the exclusive power of the federal government. That
is, state laws are preempted by Congressional authority to regulate the
activities of resident aliens. Graham v. Richardson.
Graham v. Richardson
Richardson was a LPR from Mexico who had lived in AZ for 3 years. Within that time,
she had become permanently disabled and applied for the AZ assistance program for
permanently disabled residents. The requirements for eligibility included citizenship
and residency in AZ for at least 15 years, she filed suit but was denied relief solely
b/c of the residency provision. Similarly, Leger and Jervis were denied state benefits
b/c of lack of citizenship. The states sought to justify their restrictions on the eligibility
of aliens for public assistance on the basis of a state’s “special public interest” in
favoring its own residents over aliens in the distribution of limited resources.
Issue was whether the 14th amendment prevents a state from conditioning welfare
benefits either (a) upon a beneficiary’s possession of U.S. citizenship or (b) if the
 71

beneficiary is an alien, upon his having resided in this country for a specified number
of years. State enactment
Held that a state statute that denies welfare benefits to resident aliens and one that
denies them to aliens who have not resided in that specific state for a number
of specified years violates the EPC.
♦ Welfare benefits are a right, not a privilege, and states may only
limit privileges to resident citizens.
♦ Special public interest doctrine applies only to privileges,
not rights.
♦ State laws that deny public benefits b/c of alienage conflict with
an area constitutionally entrusted to the federal government
Congress has no constitutional duty to provide all aliens with the
welfare benefits provided to citizens and may discriminate in favor of
citizens and against aliens in providing welfare benefits. Matthews v.
Diaz.

Matthews v. Diaz stands for the proposition that the level of judicial
scrutiny of federal classifications involving alienage is far more
deferential than that applied to the state.
Matthews v. Diaz
Appellees are resident aliens who were lawfully admitted to the U.S. less than 5 years
ago all three are over 65 years old and were denied enrollment in Medicare part b.
That part of Medicaid grants eligibility to aliens only if they have been admitted as
permanent residents and also have resided in the U.S. for at least 5 years. Federal
enactment
Issue: whether Congress may condition an alien’s eligibility for participation in a federal
medical insurance program on continuous residence in the US For a 5 year period
and admission for permanent residence.
Real issue was whether Congress could discriminate within the class of aliens –
allowing benefits to some aliens but not others.
Held that Congress has no constitutional duty to provide all aliens with the welfare
benefits provided to citizens and may discriminate in favor of citizens and against
aliens in providing welfare benefits.
Although Congress’ plenary power give its authority over immigration
and naturalization made clear in Chinese Exclusion Case, the federal
power over aliens is not so plenary that any agent of the national govt.
May arbitrarily subject all resident aliens to different substantive rules
from those applied to citizens. Government must identify a reasonable
interest in discriminating against aliens. Mow Sun Wong.

Mow Sun Wong

Case in which the federal civil service commission regulation required federal civil
service employees to be citizens.
Court found that the rule hurt already disadvantaged aliens and that the govt. Did not
identify any interest which can reasonably be assumed to have influenced the
civil service commission in the administration of their responsibilities.
 72

President Ford then went on to issue an executive order that imposed the same
citizenship requirement, which lower courts later upheld.

Mow Sun Wong stands for the proposition that either the president or
Congress can regulate the activities of aliens as long as a reasonable
interest is proffered. Taken even further, even another government
agency’s regulation would probably not be scrutinized.

The 1996 welfare reform act impaired many noncitizen recipients by

limiting welfare recipients to 5 years of benefits and requires them to work
within 2 years of receiving aid. It abolished the AFDC but replaced it with
the new temp assistance for needy families program through block grants
to the states. It also shifted authority and substantial costs from the
federal govt. to the states. Aliens cut off from federal programs are likely
to seek aid from states and localities.

City of Chicago v. Shalala

CASE WHERE WELFARE REFORM ACT SIGNIFICANTLY RESTRICTED

ELIGIBILITY OF NON-CITIZENS TO RECEIVE WELFARE BENEFITS.
BENEFITS ONLY GIVEN TO “QUALIFIED ALIENS:” LPR, REFUGEES AND
ASSYLEES, AND CERTAIN OTHER CLASSES.

• Diaz provides precedent: Congress has no duty to provide all aliens with
the welfare benefit provided citizens. The fact that an act on congress
treats aliens differently does not imply that the disparate treatment is
invidious.
• A statute survives rational basis scrutiny if there is a rational relationships
b/w the disparity of treatment and some legitimate government purpose.
• Congress’ policy to encourage alien self-sufficiency.
• Congress’ intent not to have availability of Welfare as an incentive to
immigrate to US.
• The executive branch says the act incentivizes naturalization.
• Holding:Matthews requires application of a rational basis for the disparity
of treatment and the Act survives because it is rationally related to a
legitimate government concern.

*Remember the three tests used to test constitutionality of a state statute that tries to
classify aliens.

1.Rational relationship b/w classification in state legislation and legitimate govt interest.
This is the least stringent

2.Intermediate std: test substantial relation b/w two. Used often for gender based
statutes.

3. Strict scrutiny test: when classification impinges upon a suspect class or a

fundamental right and the statute is subject to SS and almost never passes this test.
Suspect class is a discrete and insular minority. Most stringent. You must argue for
this test that aliens are a discrete and insular minority and that the state failed to
show its compelling interest in creating a classification.
 73

(B) UNAUTHORIZED IMMIGRANTS IN THE U.S.

(1) WHY DO UNDOCUMENTED IMMIGRANTS ENTER THE U.S.?

1) To join family members
2) To flee persecution in their homeland
3) To go to school
4) Economic factors
5) Public and private factors in encouraging or at least tolerating unlawful immigration (backdoor
labor source)

(2) IMPACT OF UNAUTHORIZED IMMIGRATION IN THE U.S.

1) Impact on social services
2) Employment opportunities and wages of US Citizens and legal immigrants
3) Impact on state and local finances
4) Money that undocumented workers send home to their families is a significant form of unofficial
foreign aid.

(3) CONTROLLING UNDOCUMENTED IMMIGRATION

1. Border enforcement
• Tighter border enforcement deters illegal immigration, reduces human
rights violations, increased the seizure of illegal contraband
• Also includes building higher fences and erecting lights
2. Employer sanction and anti-discrimination provisions
Justification for ER sanctions
1) Imposition of penalties on Employers who hire undocumented aliens will
deter their hiring
2) Bc securing employment is the primary reason for illegal entry and
residence, this will reduce incentives for illegal entry
3. Public benefits
Public schools cannot refuse to educate the non-US Born children
of illegal aliens. Plyler v. Doe
Plyler v. Doe
• Laws passed by the TX state legislature and enforced by Plyler that
withheld from local school districts any state funds for the education of
children who were not legally admitted into the U.S. were challenged as
violative of the EPC. Doe sued Plyler, alleging that the laws were
inconsistent with the dictates of the EPC of the 14th amendment b/c they
caused the children of undocumented aliens to be treated as a suspect class
and that such classifications did not bear a fair relationship to any legitimate
public purpose.
• Held that public schools cannot refuse to educate the non-US Born
children of illegal aliens.
• Legislation directing the onus of a parent’s misconduct against
his children does not comport with fundamental conceptions of justice.
• Law here is directed against children and imposes its
discriminatory burden on the basis of a legal characteristic –
undocumented status – over which children can have little control.
 74

• No evidence here that illegal immigrants impose any significant

burden on the state’s economy.

In 1994, CA adopted prop 187 which restricted undocumented

aliens’ access to public services, including education and
nonemergency health care. It also creates substantial criminal
penalties for the manufacture and distribution of false citizenship
and permanent residence documents.

(C) DEPORTATION
The S. Ct. has established essentially no limits on Congress’ authority to define classes of
deportable aliens. This parallels the doctrine developed by the court in exclusion cases.
DEPORTABILITY applies only to those aliens who have been admitted and for whom
grounds of deportability apply. INA § 237(a). Definition is found in §101(a)(13).
EXCLUSION applies to noncitizens present in this country without having been inspected
and admitted.
INA §101(a)(13)

Under IIRIRA, no longer do we talk about deportation or exclusion. Rather both of

these concepts are collapsed into Inadmissibility or admissibility. Thus, all
questions about a person’s right to remain, whatever the circumstances of
her detection or apprehension, are adjudicated in a unified removal
proceeding under §240, no matter whether the basic charge is exclusion or
deportability. IOW, same proceeding for both (KA removal proceeding).
However, if someone is removable right away, they are subject to expedited
removal.

(1) THE DEPORTATION POWER

Congress will apply the same 1st amendment standard to aliens’ claims as they do
to citizens. Harisades v. Shaughnessy
Harisades v. Shaughnessy
Issue: whether the U.S. could constitutionally deport a legally resident alien because of
membership in the communist party which terminated before the enactment of the
alien registration act of 19401 deportation proceedings were issued for three
individuals who then brought suit asking to forbid their expulsion. Each of the three
were offered nationalization but denied it and kept their own nation’s citizenship.
Held: that the act was not invalid under the DPC, 1st amendment (deportation for the
expression of political views), or ex post facto constitutional arguments
Rationle: That aliens remain vulnerable to expulsion long after long term
residence is a weapon of defense inherent in every sovereign state

1
Alien Registration Act of 1940 provided for deportation of any alien who had been a member of a
subversive group at any time irrespective of their entry into the US. It was intended to apply to aliens who
were associated with subversive organizations for no matter how short a time or how far in the past.
 75

Not our job to make judgments about legislation. Judicially we must tolerate what
personally we may regard as a legislative mistake.
DPC does not protect individuals from conscription and the calamity of being separated
from family and friends when the purpose is to stem the tide of communism.
We think that in the present state of the world, it would be rash and irresponsible to
reinterpret our fundamental law to deny or qualify the govt.’s power of deportation.
If communist aggression creates such hardships for loyal citizens, it is hard to find
justification for holding that the constitution requires that its hardships must be spared
against the communist alien.
1st Am. does not prevent the deportation of aliens.
Court used the ______ standard of review
 76

Constitutional protections that lawful aliens have:

Based on the distinction that aliens
7) criminal ex post facto laws
have not pledged allegiance to the
8) Habeas corpus US and thus are removable
9) 5th and 6th amendment in bill of rights
10) Due process Government has power to terminate
11) Equal protection of the laws (Yick Wo) its hospitality (Fong Yue Ting)
12) 1st amendment

1st amendment FREEDOM OF ASSOCIATION protects permanent residents and

citizens equally in the deportation context when there have been status violations.
American Arab anti-discrimination committee v. Reno
American Arab anti-discrimination committee v. Reno (9th Cir)
Issue was whether aliens may be deported b/c of their associational activities with
disfavored groups, or whether aliens who reside within the jurisdiction of the U.S. are
entitled to the full panoply of 1st amendment rights of expression and association.
Government argued that aliens are not entitled to the same 1st amendment protections
that citizens enjoy and that Congress’ plenary power over immigration justifies a
lower 1st amendment standard for aliens in the deportation context and on Kleindienst
v. Mandel as dispositive of the issue of whether aliens may be deported b/c of their
associational activities with particularly disfavored groups.
Held that 1st amendment protects permanent residents and citizens equally.
♦ Must remain true to the principle underlying the 1st amendment,
that any limitation to the 1st amendment are themselves damaging to the
values underlying 1st amendment protections
♦ These aliens are already here within our jurisdiction and are
entitled to our protection in exchange to obedience to our laws.
♦ Kleindienst dealt with exclusion of a Marxist rather than with
deportation so Inapplicable
♦ 1st amendment does not distinguish between aliens and citizens
but to all peoples who may peaceably assemble.
♦ To not give them 1st amendment rights sends a frightening
message to any alien considering controversial political activity and chills
free speech and associational activities in any setting.
NOTE:
Selective prosecution is a term normally used in criminal context so selective prosecution
argument is a little off base. Deportation is civil. (ginsburg)
AAC does not mean that an alien is protected from deportation by the 1st amendment
where there are status violations. AAAC is specifically applicable to freedom of
association and may not protect the alien when the alien is more adamantly utilizing
INA § its freedom of speech. Thus, INA §237(a)(4)(b) allows the INS to deport an alien
237(a)(4) for terrorist activities engaged in after arrival or during arrival in an individual
(B) capacity or as a member of an organization.
♦ Question of whether an alien who has no status violations can be
deported for membership is thus still unanswered.
 77

(2) GROUNDS OF DEPORTABILITY

Court has generally read deportation statutes quite narrowly b/c stakes for the individual
are considerable and the court will not assume that Congress meant to trench on his
freedom beyond that which is required by the narrowest of several possible meanings of
the words used.

Standard used is the “clear statement” rule of statutory construction.

• “Has Congress stated with clarity what conduct shall render
the alien deportable?”
(a) IMMIGRATION CONTROL-RELATED GROUNDS FOR
DEPORTATION
(i) Inadmissible at time of entry and adjustment of status
–
e.g., fraud and ♦ §237 (a)(1)(a)
willful misrep. in
alien’s own visa ♦ §237 (a)(1)(a) subjects an alien to deportation if she was
application Inadmissible at time of entry or adjustment of status. (AKA delayed
exclusion)
♦ No SOL on this delayed exclusion
♦ Fact that alien passed through inspection at the border does not
prevent deportation

(ii) Presence in the U.S. in violation of law –

♦ §237(a)(1)(B)
♦ Applies where presence in us is without inspection (illegal aliens)
♦ Also applies to nonimmigrant overstays (deportable under
§237(a)(1)(B))
(iii) Failure to maintain nonimmigrant status (also applies
overstays)
♦ §237(a)(1)(c)(i)
♦ INA §237(a)(1)(c)(i) provides for the deportation of
nonimmigrants who fail to maintain their status or violate the conditions
of their admission.
♦ Also covers nonimmigrants who work without authorization,
students who leave school, and temporary workers who abandon their
employment.
(iv) Document fraud
e.g., LPR who ♦ §274(c)
sells fake green
♦ Imposes civil and criminal penalties on persons and entities that
cards
engage knowingly in various types of fraud in connection with
immigration-related documents

(b) CRIME-RELATED GROUNDS FOR DEPORTATION
Deals with convictions, not simply for committing a crime. The conviction must be
FINAL.
(i)
§ 237(a)(2)(A)(II):
A crime of moral
turpitude includes one
where the alien was
convicted of a crime for
which a sentence of 1
year or longer may be
imposed.
(ii)
♦ § 237(a)(2)(b)
Under INA § 239 (d)(1),
the AG can begin removal
proceedings as
expeditiously as possible
78
Crimes involving moral turpitude –
§237(a)(2)(a)(i)
§237(a)(2)(a)(i) states that an aliens is deportable for a
crime of moral turpitude within 5 years after entry (10
years for LPR’s) and convicted to prison for more than a
year.
The question whether a crime is one of moral turpitude is
whether “a crime is one with an intent to defraud as an
element, thereby making it a crime involving moral turpitude, is
determined by the statutory definition or by the nature of the
crime, not be specific conduct that resulted in the conviction”
Goldeshtein
Drug offenses
INA mandates the following:
(i) The deportation of all persons convicted of any
drug offenses, including under-the-influence
convictions.
(ii) It was amended in 1990 by Congress to include
any alien who is a drug abuser or addict, even those
who have not been convicted
Subsection (ii) reaches alien drug abusers who have not been
convicted of controlled substance offenses while subsection (i)
reaches all aliens convicted of controlled substance violations,
including the U.S.e of drugs.
A lawful resident alien convicted of use or being under the
influence is deportable as one convicted of violating “any
law…relating to a controlled substance” Flores-Arrellano.
Flores-Arrellano v. INS
• Flores entered the U.S. as a permanent resident in
1990. All of his parents and children were LPR’s. After the
INS issued an order to show cause charging Flores with
deportability on the basis of his conviction for being under
the influence of drugs, Flores argued that “use” convictions
were excluded from deportability.
• Held that a lawful resident alien convicted of use or
being under the influence is deportable as one convicted of
violating “any law…relating to a controlled substance”
 79

• Plain language of the statute §241(a)(2)(b)(1)

of the INA reaches under-the-influence convictions.
Provision is not ambiguous nor does its plain language
lead to absurd results or internal statutory
inconsistencies.

No Judicial (iii) Aggravated Felonies –

Review ♦ 237(a)(2)(a)(iii)
♦ INA § 101(a)(43)
♦ INA § 237 (a)(2)(b)(i)

237(a)(2)(a)(iii) or INA § 101(a)(43) allows the deportation of

any alien who is convicted of an aggravated felony at any
Under INA § 238 (b)(2)
time after admission.
(A), and (B),

nonLPR’s and
conditional permanent
residents are subject to
expedited removal if
they have been
convicted of an AF.
This statute is harsh b/c it allows an alien who has been in the U.S.
for 20 years to be deportable for an aggravated felony.
Consequences of aggravated felony convictions are harsh:
a) Not eligible for most forms of relief from deportation
b) No asylum
c) No judicial review of deportation orders
d) Barred from life from re-entering without the AG's
consent
e) Subject to removal procedures under INA §238(b)

In re Batista Hernandez
• B-H was a citizen of the Dominican Republic who entered the U.S.
without inspection in 1985. 3 years later, the INS granted the respondent
temporary resident status and he thereafter adjusted his status to LPR. In
1993, he was convicted of the offense of accessory, an aggravated felony,
and a controlled substance violation. The immigration judge found him
deportable on both grounds and certified his decision to the immigration and
naturalization board.
• Held that the conviction did not relate to a controlled substance
violation for purposes of establishing deportability under § 241(a)(2)(b)
(i) of the act but that it did come within the statutory definition of an
aggravated felony.

(iv) Terrorist Activities

No Judicial
Review
Under INA § 504(a)(1), the A/G can begin removal proceedings as
expeditiously as possible if the alien is a terrorist or has engaged in
terrorist activities.
(v) Domestic Violence, Violation of Protection Order, Child
Abuse/Neglect/Abandonment
♦ §237(a)(2)(e)
 80

(D) RELIEF FROM REMOVAL

This section will examine the various provisions in the INA that provide relief from
removal.

In the majority of removal hearings, the eligibility for such relief is

the only issue:
The alien will concede deportability at the outset of the hearing, and
then request some form of relief from removal.

(1) WAIVERS OF THE INADMISSIBLITY OF AN ALIEN

§212 (D) TEMPORARY ADMISSION OF NONIMMIGRANTS

(1) the attorney general shall determine whether a ground for Inadmissibility
exists with respect to a nonimmigrant described in section 1101(a)(15)(s)
of this title. The attorney general, in the attorney general's discretion,
may waive the application of subsection (a) of this section (other than
paragraph (3)(e)) in the case of a nonimmigrant described in section
1101(a)(15)(s) of this title, if the attorney general considers it to be in the
national interest to do so. Nothing in this section shall be regarded as
prohibiting the immigration and naturalization service from instituting
removal proceedings against an alien admitted as a nonimmigrant under
section 1101(a)(15)(s) of this title for conduct committed after the alien's
admission into the united states, or for conduct or a condition that was not
disclosed to the attorney general prior to the alien's admission as a
nonimmigrant under section 1101(a)(15)(s) of this title.

(2) repealed.

(3) Except as provided in this subsection, an alien

(A) Who is applying for a nonimmigrant visa and is known or believed
by the consular officer to be ineligible for such visa under
subsection (a) of this section (other than paragraphs (3)(a)(i)(i), (3)
(a)(ii), (3)(a)(iii), (3)(c), and (3)(e) of such subsection), may, after
approval by the attorney general of a recommendation by the
secretary of state or by the consular officer that the alien be
admitted temporarily despite his Inadmissibility, be granted such a
visa and may be admitted into the united states temporarily as a
nonimmigrant in the discretion of the attorney general, or
(B) Who is Inadmissible under subsection (a) of this section (other
than paragraphs (3)(a)(i)(i), (3)(a)(ii), (3)(a)(iii), (3)(c), and (3)(e) of
such subsection), but who is in possession of appropriate
documents or is granted a waiver thereof and is seeking
admission, may be admitted into the united states temporarily as a
nonimmigrant in the discretion of the attorney general. The
attorney general shall prescribe conditions, including exaction of
such bonds as may be necessary, to control and regulate the
admission and return of Inadmissible aliens applying for temporary
admission under this paragraph.
 81

(4) Either or both of the requirements of paragraph (7)(b)(i) of subsection (a)

of this section may be waived by the attorney general and the secretary of
state acting jointly (a) on the basis of unforeseen emergency in individual
cases, or (b) on the basis of reciprocity with respect to nationals of foreign
contiguous territory or of adjacent islands and residents thereof having a
common nationality with such nationals, or (c) in the case of aliens
proceeding in immediate and continuous transit through the united states
under contracts authorized in section 1223(c) of this title.

(5) (a) the attorney general may, except as provided in subparagraph (b)
or in section 1184(f) of this title, in his discretion parole into the united
states temporarily under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or significant public
benefit any alien applying for admission to the united states, but such
parole of such alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the opinion of the attorney
general, have been served the alien shall forthwith return or be returned
to the custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the united states.

(b) the attorney general may not parole into the united states an alien
who is a refugee unless the attorney general determines that
compelling reasons in the public interest with respect to that
particular alien require that the alien be paroled into the united
states rather than be admitted as a refugee under section 1157 of
this title.

(6) repealed.

(7) The provisions of subsection (a) of this section (other than paragraph (7))
shall be applicable to any alien who shall leave Guam, Puerto Rico, or the
virgin islands of the united states, and who seeks to enter the continental
united states or any other place under the jurisdiction of the united states.
The attorney general shall by regulations provide a method and procedure for
the temporary admission to the united states of the aliens described in this
proviso. Any alien described in this paragraph, who is denied admission to
the united states, shall be immediately removed in the manner provided by
section 1231(c) of this title.

(8) Upon a basis of reciprocity accredited officials of foreign governments, their

immediate families, attendants, servants, and personal employees may be
admitted in immediate and continuous transit through the united states
without regard to the provisions of this section except paragraphs (3)(a), (3)
(b), (3)(c), and (7)(b) of subsection (a) of this section.

(9), (10) repealed.

(11) the attorney general may, in his discretion for humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest, waive
application of clause (i) of subsection (a)(6)(e) of this section in the case
 82

of any alien lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of removal, and who
is otherwise admissible to the united states as a returning resident under
section 1181(b) of this title and in the case of an alien seeking admission
or adjustment of status as an immediate relative or immigrant under
section 1153(a) of this title (other than paragraph (4) thereof), if the alien
has encouraged, induced, assisted, abetted, or aided only an individual
who at the time of such action was the alien's spouse, parent, son, or
daughter (and no other individual) to enter the united states in violation of
law.

(12) the attorney general may, in the discretion of the attorney general for
humanitarian purposes or to assure family unity, waive application of
clause (i) of subsection (a)(6)(f) of this section--
(A) In the case of an alien lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and not under an
order of deportation or removal and who is otherwise admissible
to the united states as a returning resident under section 1181(b)
of this title, and
(B) In the case of an alien seeking admission or adjustment of status
under section 1151(b)(2)(a) of this title or under section 1153(a) of
this title, if no previous civil money penalty was imposed against
the alien under section 1324c of this title and the offense was
committed solely to assist, aid, or support the alien's spouse or
child (and not another individual). No court shall have jurisdiction
to review a decision of the attorney general to grant or deny a
waiver under this paragraph.

§212 (H) WAIVER OF SUBSECTION (A)(2)(A)(I)(I), (II), (B), (D), AND (E)
The attorney general may, in his discretion, waive the application of
subparagraphs (a)(i)(i), (b), (d), and (e) of subsection (a)(2) of this section and
subparagraph (a)(i)(ii) of such subsection insofar as it relates to a single offense
of simple possession of 30 grams or less of marijuana if--
(1) (a) in the case of any immigrant it is established to the satisfaction of the
attorney general that--
(i) The alien is Inadmissible only under subparagraph (d)(i) or
(d)(ii) of such subsection or the activities for which the alien
is Inadmissible occurred more than 15 years before the
date of the alien's application for a visa, admission, or
adjustment of status,
(ii) The admission to the united states of such alien would not
be contrary to the national welfare, safety, or security of
the united states, and
(iii) The alien has been rehabilitated; or
(b) in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the united states or an alien lawfully admitted for
permanent residence if it is established to the satisfaction of the attorney
general that the alien's denial of admission would result in extreme
hardship to the united states citizen or lawfully resident spouse, parent,
son, or daughter of such alien; and
 83

(2) the attorney general, in his discretion, and pursuant to such terms,
conditions and procedures as he may by regulations prescribe, has
consented to the alien's applying or reapplying for a visa, for admission to
the united states, or adjustment of status.

No waiver shall be provided under this subsection in the case of an alien

who has been convicted of (or who has admitted committing acts that
constitute) murder or criminal acts involving torture, or an attempt or
conspiracy to commit murder or a criminal act involving torture.

No waiver shall be granted under this subsection in the case of an alien

who has previously been admitted to the united states as an alien lawfully
admitted for permanent residence if either since the date of such
admission the alien has been convicted of an aggravated felony or the
alien has not lawfully resided continuously in the united states for a period
of not less than 7 years immediately preceding the date of initiation of
proceedings to remove the alien from the united states. No court shall have
jurisdiction to review a decision of the attorney general to grant or deny a waiver
under this subsection.

§212 (I) ADMISSION OF IMMIGRANT INADMISSIBLE FOR FRAUD OR WILLFUL

MISREPRESENTATION OF MATERIAL FACT
(1) The attorney general may, in the discretion of the attorney general, waive
the application of clause (i) of subsection (a)(6)(c) of this section in the
case of an immigrant who is the spouse, son, or daughter of a united
states citizen or of an alien lawfully admitted for permanent residence if it
is established to the satisfaction of the attorney general that the refusal of
admission to the united states of such immigrant alien would result in
extreme hardship to the citizen or lawfully resident spouse or parent of
such an alien.
(2) No court shall have jurisdiction to review a decision or action of the
attorney general regarding a waiver under paragraph (1).

§212 (K) ATTORNEY GENERAL'S DISCRETION TO ADMIT OTHERWISE

INADMISSIBLE ALIENS WHO POSSESS IMMIGRANT VISAS
Any alien, Inadmissible from the united states under paragraph (5)(a) or (7)(a)(i)
of subsection (a) of this section, who is in possession of an immigrant visa may, if
otherwise admissible, be admitted in the discretion of the attorney general if the
attorney general is satisfied that Inadmissibility was not known to, and could not
have been ascertained by the exercise of reasonable diligence by, the immigrant
before the time of departure of the vessel or aircraft from the last port outside the
united states and outside foreign contiguous territory or, in the case of an
immigrant coming from foreign contiguous territory, before the time of the
immigrant's application for admission.

(E) EXPEDITED REMOVAL

Prior to expedited removals, there were hearings before IJ when an alien was attempting to
gain entry into our country. Furthermore, under prior law, deportation hearings were
 84

also held if a person had already made an entry. Now, however, expedited removals
are possible.

§ 235(C)(1) STATES THAT EXPEDITED REMOVAL DOES NOT APPLY TO AN

LPR!!! EVEN THOUGH YOU ARE SAYING HE IS INADMISSIBLE, EXPEDITED
REMOVAL IS NOT FOR RETURNING ALIENS! IT IS ONLY FOR ALIENS
SEEKING ADMISSION.

(1) EXPEDITED REMOVAL, GENERALLY

• Procedure for aliens who arrive at the border or port of entry
with no documents that applies at all times and therefore are
Inadmissible under INA § 212(a)(6) & § 212(a)(7)
• May also apply to aliens inside the US, not at the border, if the
A/G decides to expeditiously remove in “her sole and unreviewable
discretion.” See INA § 235(b)(1)(a)(iii).

§235(b)(1) applies to any ARRIVING ALIEN who seeks admission but is

inadmissible under §212(a)(6)(c) or (7), because he has no documents,
or fraudulent or invalid documents.

There is no DP for the arriving alien here being excluded. See Knauff.
An alien subject to § 235(b) is to be removed “without further hearing or
review unless the alien indicates either an intention to apply for asylum
under § 208 or a fear of persecution.”
• If asylum  he is detained and referred to an asylum officer, who
conducts an interview to determine if the alien has a “credible fear of
persecution.” § 235(b)(1)(b)(v)
• If credible fear of persecution  he is detained for further
consideration of the application of asylum with possible release from
parole.
• If no credible fear of persecution  the alien may request
review by an immigration judge in a special procedure.
• Review must take place within 7 days after asylum officer’s
decision and the alien is detained pending review.
• Otherwise, IJ review is available by statute only to persons who
claim to be LPR’s or those admitted as refugees, or to have been granted
asylum.

Expedited removal makes an alien inadmissible for 5 years. INA §

212(a)(9)(i).

However, an alien may be allowed to withdraw the application for

admission, which a great many do. INA § 235(a)(4).

Judicial review of expedited removal orders under INA § 235(b)(1) is

severely limited.
A court may review such orders only in habeas corpus proceedings and the
statutory text would limit review to certain issues:
3) Whether the petitioner is not an alien ordered removed under §
235(b)(1) and
 85

4) Whether he can prove by a preponderance of the evidence that

he is a permanent resident, was admitted a s refugee, or granted
asylum.
• If the court makes one of these findings, it can only order a
removal hearing under § 240.
• It may not decide whether the alien is actually Inadmissible or
entitled to relief from removal.
• Such suits may be brought within 60 days of the implementation of
the challenged regulation or policy, and the courts are mandated to
expedite their disposition of the case as much as possible.

(2) REINSTATEMENT OF REMOVAL ORDERS

INA §241(a)(5) provides for the reinstatement of removal orders against

aliens who illegally enter the US after having been removed or after
having departed voluntarily under a removal order.

Notice that the original order is not subject to being reopened or reviewed,
and the alien is ineligible for any discretionary relief under the INA.

(3) REMOVAL OF TERRORISTS

*held only if the A/G submits an application and nothing seems to require the A/G to do
so.

ALIEN TERRORISTS MAY BE EXPEDITIOUSLY REMOVED UNDER THE

AG’S DISCRETION

INA §§ 501-507 provides for a special court and procedures for removal
of alien terrorists.

An “alien terrorist” is any alien deportable under § 237(a)(4)(b), which

includes any alien “whom has engaged, is engaged, or at any time after
entry engages in any terrorists activity” as defined in § 212(a)(3)(b)(iii).

Under INA § 503(a), (c), special procedures apply iff the A/G certified,
and a single judge of the removal court determines:
a) That the alien is an alien terrorist
b) That the alien is physically present in the U.S.
c) That removal of the alien under normal procedures would pose a
risk to the national security if the united states

A public hearing follows “ as expeditiously as practicable.” See INA §

504.

Alien must be given notice, including a general account of the basis for
the charges. The alien has the right to be present and to be represented
by counsel, including appointed counsel for any alien financially unable
to obtain counsel.
 86

(4) REMOVAL OF ALIENS WITH CRIMINAL CONVICTIONS

Aliens can be removed for criminal convictions.

ALIENS WITH CRIMINAL CONVICTIONS MAY BE EXPEDITIOUSLY

REMOVED UNDER THE AG’S DISCRETION

INA § 239(d) instructs the A/G to begin removal proceedings as

expeditiously as possible after the date of conviction that makes
the alien deportable. (includes all criminal convictions except a
single crime of moral turpitude)

INA § 238(b) allows the A/G to order an alien deported without a

hearing before an immigration judge. DOES NOT APPLY TO
LPR’S WITH AF CHARGES. Applies ONLY to aggravated felons
who are NOT LPR’s or are conditional permanent residents under
INA § 216.
• No requirement that the removal order be supported by CCE.

INA § 238(c) allows courts to order removal when sentencing an

alien for a crime that makes hi deportable.

(5) SECRET EVIDENCE

INA §235 (c) permits the AG to order removal of an arriving alien on most of the
national security grounds of inadmissibility without a further hearing if she acts on
the basis of “confidential information, the disclosure of which “would be
prejudicial to the public interest safety and security.”
INA § 240 which is how removal proceedings are to be organized.

Secret evidence repeal act of 1999 ensured that no alien is deprived of a

benefit under the INA as a result of evidence kept secret from the alien.
• §2 of the sera of 1999 states the findings of Congress, which
include that no person located in the US Shall have her liberty restricted
as a result of secret evidence, that deportation may separate an alien
from his family and subject the alien to torture in his home country, and
that withholding information and evidence violates the alien’s due process
rights and undermines the adversarial system.
• §7 amends the expedited removal provisions of 235(c)(1) of the
INA to bar their application to LPRs, advance parolees, and parolees
under § 212(d)(5) and asylum seekers form the expedited removal
proceedings in INA § 235(c)(1).

§ 240 (b)(4)(b) at the bottom of pg 222 states that aliens have a right
1) To review all evidence being used against her,
2) To present evidence in her own defense,
3) To cross examine all evidence, and
4) To have access to any records relating to her admission to the US [§240(c)
(2)]
But that does not include the right to examine national security
information which is confidential or secret.
 87

INA § 240(c)(2) says that the alien shall have access to visa or entry
documents that are not confidential.

If you want to argue that the repeal of the secret evidence act is critical
in order to protect an alien from having her liberty curtailed, argue that
DP clause of constitution does not distinguish between citizens and
aliens. Due process clause is given to all persons.

Kiareldeen was a 31 y/o Palestinian who had a student visa in 1990.

Attended Rutgers and lived in the U.S. for more than 10 years. He believed
that his problems with the INS was due to his first wife whom he divorced in a
nasty divorce proceeding. She claimed that he threatened to bomb her car.
He overstayed his student visa. He was in detention in part due to secret
evidence and the evidence that was presented to justify his detention
concluded that he was associated with an unidentified terrorist bomb
organization, expressed a desire to murder A/G Reno, and had a meeting the
night before the bombing of the world trade center with other Palestinians.
b/c he overstayed, he was removable anyway.

So the question is why was the secret evidence then even utilized if he was
already removable?
• Because one can apply for a bond for a status violation such as
overstaying a visa. In order to prevent his release on bond, the INS uses the
secret evidence to ensure that he remains in custody.

The case ultimately came before the court by k applying for habeas corpus.
Ultimately a NJ court granted his HC petition on the grounds that the secret
evidence deprived him of his liberty. Interestingly, 5 days before he was
released, an IJ granted his adjustment of status. One of the atty. Defending
him argued the secret evidence repeal act and that such provisions in the act
were necessary to protect certain immigrant communities from abuses. Arab
and Muslim communities are the most highly targeted communities where
secret evidence is used against them.

(6) PUBLIC ACCESS

After 911 DOJ sought to close off access to some removal proceedings.

Detroit Free Press v. Ashcroft: does a 1st Amendment right confer a public
right of access to deportation hearings?
• The Creppy Directive issued by chief imm judge creppy required
closure to all deportation hearings from the public friends and family.
• As to congress’ plenary power over imm, the constitution meaningfully
limits non-substantive imm laws and does not require special
deference to the govt
• Kleindiest distinguished because it involved a substantive imm issue
(who may enter US). This case involves procedural issue: who may
access hearings.
 88

• Chadha states that as long as Congress exercise of its plenary power

does not offend some other constitutional restriction then that exercise
is permissible. The present case shows an impermissible exercise of
that power. The plenary power is subject to important constitutional
limitations.
• Zadvydas states that the court would defer to political branches
plenary power in cases that involve terrorists. HOWEVER, this
directive sweeps a broad group of aliens into its net without
determining who is dangerous and what “special interest” means
when it comes to information.
• Part 1 of two part test for m Richmond News: “experience”;
deportation hearings have traditionally been open to the public.
• Part 2 logic: does public access play a significant positive role in the
functioning of the particular process in question? Yes public access
enhances the quality of deportation hearings. Public serves as a
check on abusive govt practices. Access ensures govt does its job
properly, thereby preventing future mistakes. Deportees have no right
to an attorney; the public can act as their guardian. Increases
perception of integrity and fairness
• Strict Scrutiny applied since 1st amendment implicated. The directive
does not pass muster. The compelling govt interest to fight terrorism
is not narrowly applied to serve that interest. Closing access does not
fight terrorism. Democracies die behind closed doors.
North Jersey Media Group: does the public have a right of access to
deportation hearings?
• No. Relying on Richmond cannot analogize public access to
criminal trials to deportation hearings.
• Congress has a presumption of openness for immigration
hearings but this presumption does not confer a constitutional
right.
• This court does concede that there are constitutional limitations to
Congress plenary power as exercised.
• However closing deportation hearings will aid in preventing
another 911. The aliens have a substantial amount of DP in their
hearings and the Creppy directive mostly impacts the media and
not the aliens.
 89

Hypo:
Q: alien a is Arnet, an alien who arrived with a facially valid visa but in fact
misrepresented. Therefore, he is Inadmissible b/c of this misrepresentation.
Alien b is Larry and is an LPR who has been out of the country for 1 month. He
seeks admission into the U.S. again, but is Inadmissible b/c he committed tax
evasion a 5 years ago. Alien c is Ursula and is undocumented. 1 year ago she
walked across the border from Canada to Detroit. When she tried to break up
with her boyfriend, he reported her to the INS.
Assume that the issue is argued before a court and all aliens are at the border
trying to be readmitted. What are the arguments for and against readmission?

Alien 1:

Against expedited removal for Arnet For expedited removal of Arnet

235(b)(1)
212(8)(6)(c): misrepresented facts which
compel denying readmission
Lower standard of DP required here according
to Knauff case. Whatever process Congress
has made, it is DP
Arriving aliens are not a protected class

Alien 2:

Against expedited removal for Larry
§ 235(b)(1) is not applicable to Larry based on
statutory construction. It only applies to those
without valid documents and does not include
those who committed crimes of moral
turpitude. Hearing is required here.
Furthermore, Expedited Removal does not
apply to returning LPR’s seeking readmission,
despite that they may be inadmissible. It only
applies to aliens seeking admission without
papers or with fraudulent papers.
If you do it violates his DP rights. To uphold §
235(b)(1) is to deny some form of DP. Court
held in Yamatayo that deportation procedures
must conform to the dictates of the DPC of the
constitution also look at Plasencia. He is a
LPR who briefly left and is entitled to DP.
Fleuti doctrine dictates this case.
For expedited removal for Larry
He is Inadmissible under § 101(a)(13)(c)(5) of
the INA. It specifies that an alien lawfully
admitted is not considered seeking admission
but they are considered seeking admission if
an LPR has committed an offense § 212(a)(2)
and returns shall be considered seeking
admission despite his LPR status.
In Volpe, S. Ct. held that entry means any
entry. Also in Knauff and Mezei, we see the
court has expressly held that it is specifically
within Congress’ discretion to exclude any
aliens from admission and courts cannot
substitute their judgment for legislative
mandate.

Alien 3:
Against expedited removal for Ursula
§ 235(b)(1)(a)(3) is arbitrary in limiting an alien
who has left the U.S. for 2 years.
Residents living here have greater due
process rights than those aliens coming here
for the 1st time. Alien who is actually within the
border of the U.S. continuously for a period is
afforded greater protection than those aliens
seeking admission. (EP violation and EP does
not distinguish between aliens and citizens)
Under Knauff Mezei doctrine, abuses of aliens
Matthew v. Eldridge test requires court to
consider interest at stake for individual,
interest of government, and gain to accurate
decisionmaking if additional procedures are
added. Under this framework, it is clear that
Ursula is in a different position than a resident
alien; Ursula has greater liberties at risk
(F)DETENTION
PURPOSES OF DETENTION
5) Important to make sure that alien appears for removal hearings
90
For expedited removal for Ursula
Under plain language of statute, § 235(b)(1)(a)
(i), the INS can expeditiously remove an alien
without hearing unless the exceptions apply.
Under (i)(i)(i), A/G can apply clause 1 and 2 to
any or all aliens described in subclause 2 and
such designations are under the sole
discretion of the AG. Thus, clear language of
statute says that anyone who is not under
parole or who has not been admitted into the
U.S. is expeditiously removable.
We do not have an open border removal
system. We have certain rules and
regulations concerning aliens into this country.
They are not entitled to full DP
Knauff court said that whatever the procedures
it, it is DP. Thus, these aliens are
Inadmissible. Mezei takes this even further
and holds that we can hold aliens for an
indeterminate time if they are deportable.
Judicial review of expedited removal orders
under INA § 235(b)(1) is severely limited.
A court may review such orders only in habeas
corpus proceedings and the statutory text
would limit review to certain issues:
• Whether the petitioner is not an
alien ordered removed under §
235(b)(1) and
• Whether he can prove by a
preponderance of the evidence that
he is a permanent resident, was
admitted a s refugee, or granted
asylum.
Court can only look at this case under habeas
corpus review. Ursula can only contest this
case if she was seeking asylum or refugee
status. If she wants to appeal, she has to go
to the BIA and contest it under procedural
grounds, not on constitutional grounds.
 91

6) Important to ensure that the alien will actually leave the U.S. if ordered removed
7) Some aliens are removed b/c they pose a risk to society
8) Acts to enforce the immigration system

(1) STATUTORY OVERVIEW

Arriving aliens not in expedited removal “shall be detained” according to
INA §235(b)(2).

To be released on bond, the alien must demonstrate to the satisfaction of

the officer that such release would not pose a danger to property or
persons, and that the alien is likely to appear for any future proceedings.
See 8.c.f.r. § 236.1(c)(2)
• Factors to be considered include the alien’s employment history, length of
residence in the community, existence of family ties, record of appearance or
nonappearance in court proceedings, and previous criminal or immigration law
convictions.

However, they may be released on PAROLE in certain cases: 8 c.f.r.

§212.5
(6) Serious medical conditions
(7) Pregnant women
(8) Certain judgment
(9) Aliens who will be witness in government proceedings in the U.S.
(10)Aliens “whose continued detention is not in the public interest.”

INA § 236(c) provides that the following aliens, including LPRs, must be
detained and may not be released (MANDATORY DETENTION):
c) Aliens covered by the terrorist grounds
d) Aliens removable on criminal grounds
e) Multiple crimes of moral turpitude

INS “MANDATORY DETENTION USE POLICY” classifies detention of aliens

into categories:

1) Detained without exception: expedited removal

a) Certain categories of criminal aliens and terrorists
b) Aliens with final removal orders
c) Aliens with aggravated felony convictions in exclusion proceedings
(under prior law)
2) High priority: aliens whose detentions is essential for border
enforcement
a) Aliens with administratively final exclusion or deportation orders
b) criminal aliens not subject to mandatory detention
c) Aliens removable on security and related grounds
d) Aliens engaged in alien smuggling
3) Medium priority
a) Inadmissible arriving aliens not in expedited removal proceedings
b) Aliens smuggled into the U.S.
c) Aliens who have committed fraud before the INS
d) Aliens apprehended at a worksite who have committed fraud in obtaining
employment
4) Lower priority
a) All others fall into this category
 92

(2) CONSTITUTIONAL LIMITS

Look at constitutional limits in three settings
(i) Mandatory detention pending removal proceedings
(ii) Claims that detention is discriminatory/ equal protection claims
(iii) Indefinite detention when a removal order has been issued but the alien cannot
be removed

(3) MANDATORY DETENTION PENDING REMOVAL PROCEEDINGS

INA § 236(c) provides that the following aliens, including LPRs, must be
detained and may not be released (mandatory detention):
• Aliens covered by the terrorist grounds
• Aliens removable on criminal grounds
• Multiple crimes of moral turpitude

[when INA had § 242(a)(2) in the books (its no longer there), there was substantial
litigation b/c the provision required mandatory detention of aggravated felons after they
had served their prison sentence. The following cases are examples of such litigation
and can be seen as previews of the likely arguments one can raise in litigation over
mandatory detention.]

By enacting INA § 236, Congress attempted to create a class of

crimes that would not only subject the individual to deportation, but
would also prevent the individual from being released on bail
pending a final determination of deportability. See Leader v. Blackman.

Although there is NO ABSOLUTE RIGHT TO BAIL, there is a liberty

interest that is implicated when one is detained, which creates THE
RIGHT TO A BAIL HEARING IN MANDATORY DETENTION. See Leader

Leader v. Blackman
Leader was a 30 y/o citizen of Bermuda who had been a LPR of the U.S. since 1976. In
1989, he was arrested for selling cocaine. He was sentenced to 1 year in prison and
when released, taken into custody by the INS for deportation b/c he had been
convicted of an aggravated felony as well as a crime relating to a controlled
substance.
Leader argued 1) that his substantive and procedural DP rights had been violated. He
contended that mandatory civil post-conviction detention of LPR’s is unconstitutional
for individuals who have served their prison sentence and are eligible for
discretionary relief from deportation and 2) that indefinite detention without showing
that petitioner is likely to flee or poses a threat to the community is unconscionable
and a further violation of his rights.
Held that the provision violated the substantive and procedural due process requirements
of the 5th amendment. Thus, although there is no absolute right to bail, there is a
liberty interest that is implicated when one is detained, which creates the right to a
bail hearing.
♦ Court looked at legislative intent behind the statute and
concluded that the intent of Congress was to constitutionally prevent the
release on bail of those deemed to present a risk to society and to
 93

prevent the flight from this jurisdiction pending a final resolution of

deportability.
♦ However, the statute which provides that the A/G shall take into
custody any alien convicted of an aggravated felony upon completion of
the alien’s sentence for such conviction and not release such felon from
custody makes a general rule applicable to all aliens convicted of one of
three crimes and deprives aliens of liberty and as such it has chosen
excessive means and therefore violates the DP rights of the alien.
♦ Mere fact that there is a presumption of deportability based on
alien’s conviction of an aggravated felony does not obviate the need for a
bail hearing.

The government’s interest in ensuring the presence of convicted

aggravated felons at deportation hearings is paramount to an alien
individual’s right to bail. Davis v. Weiss

Davis v. Weiss
Alien was arrested and convicted for possession with intent to sell narcotics in
Connecticut.
Petitioner/alien filed an application for a writ of habeas corpus and for a temporary
restraining order seeking to enjoin the INS from continuing to detain him in custody,
denying him the right to a hearing for the determination of a reasonable bond under §
242(a)(2) of the INA. He claims that the statute is constitutionally infirm, b/c it denies
bail to all aliens held in detention pending a final determination of deportability.
Alien argued 1) that the statute is unconstitutional b/c it does not comport with the
procedural and substantive DP and 2) that he has a right to bail.
Held that the government’s interest in ensuring the presence of convicted aggravated
felons at deportation hearings is paramount to an alien individual’s right to bail.
Plain language of statute and legislative history illustrates that the Congressional
intent behind enacting the legislation is bona fide and does not offend the
constitution
♦ Purpose is to prevent aliens from absconding
♦ Another purpose is to aid in the fight against drug trafficking
Court utilized Matthews test to determine whether the procedures afforded aliens who
meet aggravated felon status and who are being detained pending a final
determination of deportability meet with the requirements of the constitution.
♦ Private interest at stake is the alien’s right to bail. However,
mandatory detention provisions in the INA demonstrate that Congress
has determined that such a hearing for bail is unnecessary.
♦ Less than a vitally protected interest at stake here
♦ Government’s interest is weighty however. Designed to
supplement Congress’ assault on drugs and to ensure the alien’s
presence at deportation hearings.
No EP violation here b/c not all aliens are subject to mandatory detention. The act
provides for special deportation proceedings only for aliens convicted of specifically
identified convictions.
 94

An alien being detained without opportunity for bail under the act has sufficient
safeguards to determine whether he properly falls under it.
♦ INS determination of custody may be reviewed by an IJ upon
application by the respondent for release from custody
♦ At such a hearing, the alien is entitled to contest whether his
conviction meets the aggravated felony requirements of INA § 101(a)
(43).
♦ Statute further requires expedited deportation proceedings.
 95

(4) CLAIMS THAT DETENTION IS DISCRIMINATORY

INS’ denial of an alien’s parole from detention pending exclusion does not
implicate equal protection rights. Jean v. Nelson

Jean v. Nelson
Jean, a Haitian national held in indefinite detention pending exclusion, contended that
his being denied parole constituted a denial of equal protection.
Held that it was not a denial of equal protection
S. Ct. precedents make it clear that while aliens seeking entry to the U.S. are
afforded constitutional rights in some contexts, they are not when it comes to
entering the U.S..
Congress has complete control over the admissions of aliens, which it can
delegate to the executive.
Only juridical review afforded an excluded alien is an inquiry to whether
immigration officials, when making their challenged actions, were acting
within the scope of their delegated powers.
Note: S. Ct. granted cert. In Jean v. Nelson to decide whether unadmitted
aliens may claim the safeguards of the 5th amendment, in particular
the equal protection component. It held that the Ct. App. should not
have reached & decided the parole question on constitutional grounds
but should have simply remanded to the district court whether the INS
officials discriminated in violation of the statute, regulations, and
governing ins policy.

(5) INDEFINITE DETENTION WHEN REMOVAL ORDER HAS BEEN ISSUED

BUT THE ALIEN CANNOT BE REMOVED.
Applies to Cubans in
The A/G has statutory authority to detain indefinitely an
prison. They now get
annual reviews. undeportable, excludable alien. Barrera-Echavarria.

Barrera-Echavarria v. Rison (9th Cir. 1995)

• Barerra-Echavarria is an alien who arrived in the U.S. in 1980 and was ordered
excluded and deported in 1985 b/c of a theft charge. His deportation was not
possible b/c neither his country of origin, Cuba, not any other 3rd world country, would
accept him. He had been detained by the INS in a variety of prisons since 1985.
• Barerra instituted the present habeas corpus action, arguing that the A/G lacked
statutory and constitutional authority to detain him indefinitely when it was clear that his
deportation could not be effected within the foreseeable future and that his continued
detention violated rules of international law which had binding domestic force.
Furthermore, he argued that b/c he is not serving a sentence for any crime and is not
awaiting trial on any criminal charges, the government cannot continue to detain him.
• Held that the A/G has statutory authority to detain indefinitely an undeportable,
excludable alien.
 96

• Overall structure of the provisions relating to excludable aliens assumes that the
A/G has authority to detain aliens who are subject to exclusion proceedings or who have
been ordered excluded unless she decides in her discretion to grant parole.
• Reading a time limit on detention would risk frustrating the government’s ability
to control immigration policy and relations with foreign nations. Would lead to our losing
control over our borders.
• There is no constitutional right to parole under Mezei and therefore he has not
right to be free from detention pending his deportation.
 97

(G) JUDICIAL REVIEW OF ORDERS OF REMOVAL-- § 242

Q: at what stage in the administrative proceedings should JR take place? What form of
action is appropriate? What judicial forum should hear the case? Should it for example
be the federal district court or federal Ct. App. or the supreme court? What standard
ought to be utilized for judicial review? Should JR be precluded for certain types of
matters?
A: look at § 242 and try to answer these questions.

How to get to judicial review:  administrative appeals process

(iv) First court to look at a case is the administrative agency, the INA. Specifically, the
immigration judge.
(v) 1st appeal is to BIA
One thing to remember is that from the BIA, a case could be reviewed by the A/G in
three situations
(d) When the A/G herself directs that she wants to review it
(e) When the INS sends the case to the AG
(f) When the chairperson or the majority sends something to the AG
(vi) JR is principally in the federal courts of appeals. It means therefore that the factual
record is developed at the administrative agency (the IJ and the BIA). You want to look
at INA § 242(b)(2)

First off:
1) There is always a presumption that agency action is subject to judicial review.
• APA §10 provides that:
“any person suffering legal wrong because of any agency action, or adversely
affected or aggrieved by such action within the meaning of any relevant statute, shall
be entitled to judicial review thereof.”
2) However, the fundamental principle of administrative law that a party must exhaust
administrative remedies before seeking JR!!!
3) Usual APA rules for JR often do not apply to immigration cases!!! APA does nothing with
respect to other limitations to JR and does not confer authority to grant relief if any other
legal statute prevents the relief.

INA § 242(b) sets out rules for venue and service.

INA § 242(a)(2) makes removal orders reviewable principally in federal courts of

appeals.

INA § 242(b) sets a filing deadline of 30 days after the final removal order.

INA § 242(b)(3)(B) states that there is NO AUTOMATIC STAY OF REMOVAL PENDING

JUDICIAL REVIEW. They are now discretionary. An alien may still seek judicial review
after leaving the US.
 98

(1) JUDICIAL REVIEW IS ONLY ALLOWED IN CERTAIN CASES

(a)INA § 242(e)(1) & (2):

(1) §2241 Habeas Corpus Claims (Not claims about deportation, but claims
that challenge an unconstitutional restriction on the alien’s liberty. Denial of JR
must amount to a fundamental miscarriage of justice. See Mbiya.)

A court may review such orders only in habeas corpus proceedings and the statutory
text would limit review to certain issues:
1. whether the petitioner is not an alien ordered removed under § 235(b)(1)

AND

2. whether he can prove by a preponderance of the evidence that he is a

permanent resident, was admitted as a refugee, or granted asylum.

(2) Judicial review of determinations under § 235(b) and its implementation is

available in an action instituted in the US District Court for the District of
Columbia, BUT shall be limited to determinations of

(i) whether such section, or any regulation issued to implement such

sections, is CONSTITUTIONAL;
OR

(ii) whether such regulation, or a written policy directive, written policy

guideline, or written procedure issued by or under the authority of the AG to
implement such section, is not consistent with applicable provisions of this
 99

(B) INA §242(A)(2) MATTERS NOT SUBJECT TO JUDICIAL

REVIEW

(a) Expedited Removal under 235(b)(1)

(b) denial of discretionary relief [includes adjustment of status, cancellation of

removal, voluntary departure]
• by way of exception, judicial review remains available for decisions concerning
asylum under § 208(a).
• Under INA § 242(b)(4)(B), administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude the contrary.
• Under INA § 242(b)(4)(C), a decision that an alien is not eligible for admission
to the US is conclusive unless manifestly contrary to law.
• Under INA §242(b)(4)(D), the AG’s discretionary judgment whether to grant
asylum shall be conclusive unless manifestly contrary to the law and an abuse of discretion.

(c) any finding or order of deportation against criminal aliens

• originally came in, not in the INA, but under the Anti-Terrorism and Effective Death
Penalty Act (AEDPA), which was prompted after the OK federal building bombing. In 1996, it
was folded into the INA.
• One of the basis for removal we looked at was for aggravated felonies. Look at this hypo.

An alien came to the US at 3. Became US citizen at 12 y/o. Father of 11 year old child. 11 years after
becoming a citizen, he pled guilty to a charge of without authority knowingly entering a Ford Explorer
belonging to another with the intent to commit a theft BUT he did NOT steal it. This was his first offense.
He got a sentence of 3 years although he was not convicted of an aggravated felony. Because of the
charge of burglary, a felony, the INS seeks his removal.

Q: Alien wants tot appeal the decision of the IJ and the BIA to the 7th Circuit based on the
arguments he presented to the IJ and the BIA. What arguments would you make that CoA has
jurisdiction notwithstanding that INA § 242(a)(2)(c) says that there is no judicial review of
someone who is removable bc of crime-related deportation grounds.

A: Recognize that INA § 101 (a) (43) (G) says that an aggravated felony is a theft offense or
burglary offense for which the terms of imprisonment at least one year. However, the
plaintiff can argue that the proper definition of burglary should be based on the federal
definition rather than the one in the INA. Adams v. Howerton is analogous. In Adams the
court held that the INA’s interpretation of a definition is a federal question

Also argue the POLICY behind the statute. There are 50 different states and they vary in
how they define certain offenses. Looking at the statute, Congress most likely wanted
federal uniformity and in order to get that, we have to have JR be a federal tribunal.

This hypo is based on an actual case decided in March 2000. The court gave no attention to
whether or not they have jurisdiction. Instead, they basically said “we always have the right to
determine whether we have jurisdiction.” The threshold question of whether the alien did commit
the aggravated felony.

Note the Counter Argument: the reason Congress enacted that was to speed up the
removal of disfavored aliens, e.g. those that had been convicted of criminal convictions.
So if the court takes such a face flying in the face of speedy removal orders, the
counter argument is that historically, the administrative agency’s decision is final.. Also
look at Plasencia which held some sort of DP procedures are due. You must ask
whether the lack of circuit court review has been eliminated to deprive one of DP
100
 101

HABEAS CORPUS HAS BEEN UTILIZED IN DECIDING WHETHER ONE CAN BE

RELEASED FROM DETENTION.
(1) Habeas corpus is available under §2241. § 2241 provides in relevant part that
writs of habeas corpus may be granted by the USSC, any justice thereof, the
district courts, and any Cir. court within their respective jurisdictions. The
question is “is HC relief under this statute available?”
(2) If not, the next question is “is it nonetheless available b/c of the suspension
clause of the constitution?”

Note:
(1) Be aware that in the courts in the cases below dealing with HC were all deciding
HC under ADEPA and dealing with the transitional rules under IIRIRA.
(2) In Richardson 2, decided recently, the INS held that plaintiff/LPR was removable
b/c he went to Haiti for a brief 2 days. The issue was whether the HC petition to
get released and the denial of parole were eliminated by INA §242. The S. Ct.
denied cert. In the 11th Cir. decision, which held that IIRIRA takes away habeas.
If one takes this as an indication of the USSC’s position, one can argue that
habeas is not available. But remember that many people argue that the denial of
cert. Is not an indication of where the court stands on an issue. What you need
to consider then is, if it is true that one can conclude that §242 eliminates HC as
its provided for in the statute, what about the constitutional questions of whether
one still has habeas b/c of what is available in the constitution? The Richardson
2 case talked about the §2241 and concluded that Congress intended
IIRAIRA to remove habeas from judicial review. It said no more than that.

Some courts have found that §242(g) of the INA precludes habeas jurisdiction
under §2241 to contest removal orders or collateral matters such as stays of
removal, leaving only the constitutional writ, unaided by statute. These decisions
seem to say that the scope of this habeas jurisdiction is narrow, under a standard
similar to the “fundamental miscarriage of justice or grave constitutional error”
standard that we see in Mbiya.

1st Cir. held that section 440(a)’s deprivation of jurisdiction for any finding or order
of deportation against criminal aliens applies to petitions that were pending on the
date of the AEDPA's enactment. Thus, the prohibition of judicial review does not
offend the constitution. Kolster v. INS

Kolster v. Ins (1st Cir.)

• On April 24, 1996, the AEDPA was signed into law, prohibiting judicial review of
deportation orders issued against aliens who have committed certain types of crimes.
Kolster pled guilty to such a crime and filed a petition with the 1st Cir. on Feb. 28,
1996, 2 months before the AEDPA was signed into law. He argued that the BIA
decision that he was ineligible for discretionary relief from deportation was erroneous
b/c § 440(a) does not apply to cases pending on the date of the aedpa’s enactment.
• Ins moved to dismiss the action, arguing that section 440(a) operated
immediately to divest this court of jurisdiction to hear this petition for review.
Also argued that §440(a) is “clearly a constitutional exercise of Congress’ well-
established power to provide or withhold jurisdiction from statutorily created
courts, as well as its plenary power over matters of immigration and
naturalization.”
 102

• Held that section 440(a) does apply to petitions that were pending on the date of
the aedpa’s enactment.
• Since some avenue for judicial review remains available to address
core constitutional and jurisdictional concerns, we find that section
440(a)’s repeal of our jurisdiction to review final deportation orders does
not raise a constitutional issue.
• As the nature and scope of habeas corpus review is not properly before
the court at that time, they denied reaching those questions.

Northern district of GA held that with respect to aliens subject to orders of

deportation for having committed crimes enumerated by Congress, the
constitution requires only that the writ of HC extend to those situations in which
the petitioner’s deportation would result in a “fundamental miscarriage of justice.”
See Mbiya.

Judicial review in habeas is limited to constitutional claims. See Mbiya.

Mbiya v. Ins (n. Dist. Of GA)

• Mbiya was charged with conspiracy to distribute cocaine after he was granted conditional
permanent resident status. He appeared before an IJ on the show cause order and admitted the
allegations contained therein. The IJ found that Mbiya was ineligible for relief from deportation
based on his status as a convicted drug offender. Mbiya filed a petition for habeas corpus and
sought review pursuant to §2241 of title 28 and INA § 106(a)(10) in may 1996. However, one
month after, the AEDPA was signed into law.
♦ The ins argued that b/c he was ordered deported by reason
of his conviction of an aggravated felony and of a controlled
substance violation, AEDPA removes this court’s jurisdiction to
review the instant petition for habeas corpus.
♦ Mbiya argued that the newly enacted statute was
unconstitutional on its face b/c it violated the mandate that
Congress shall not suspend the writ of HC, and as applied b/c it
constituted an ex post facto law as to him.
• Held that with respect to aliens subject to orders of deportation for having committed crimes
enumerated by Congress, the constitution requires only that the writ of HC extend to those
situations in which the petitioner’s deportation would result in a fundamental miscarriage of justice
♦ This accommodation preserves the balance between the
suspension clause and Congress’ plenary power to control
immigration
♦ Thus, an alien claiming mistaken identity or the like retains
an avenue for habeas relief from deportation.
♦ Provisions of AEDPA make clear that Congress desired to
expedite the deportation of criminal aliens and to restrict all judicial
review of final orders of deportation to the greatest extent possible.
• Petitioner is entitled to no relief for two reasons:
(1) Mbiya is not in custody such that he is entitled to habeas review under §
2241. His petition must therefore be dismissed.
(2) Mbiya is challenging the deportation order itself rather than an
unconstitutional restriction on his liberty. Thus, his petition fails to assert
 103

facts alleging confinement constituting a fundamental miscarriage of

justice.

Similarly, a N.Y. district court held that while the ADEPA amendments manifest
Congress’ desire to streamline the deportation process, the ADEPA and the IIRIRA
leave undisturbed the independent authority of federal district courts to entertain
HC petitions under §2241 of title 28. Mojica v. Reno

Mojica v. Reno
• Mojica and Saul Navas filed petitions for writs of HC to challenge deportation orders against
them. The section of the ADEPA that barred permanent residents who had been convicted of
certain crimes from seeking a waiver of deportation under former INA § 212(c) became law while
their applications were pending. They argued that barring them from seeking judicial review
erroneously gave retroactive effect to ADEPA § 440(d) and violated equal protection b/c it barred
deportable aliens but did not bar excludable aliens.
• Government argued that judicial review was barred b/c they had been
convicted of certain crimes and the only judicial review available for them was
for substantial constitutional claims, which theirs is not.
• Petitioners argued that they were challenging an interpretation of law (the
refusal of the IJ and the BIA was based on a misconstruction of the effective
date of the ADEPA section 440(d) and so the court need not decide whether
there is jurisdiction to review discretionary determinations of findings of fact.
• Held that while the AEDPA amendments manifest Congress’ desire to streamline
the deportation process, the AEDPA and the IIRIRA leave undisturbed the
independent authority of federal district courts to entertain HC petitions under §2241
of title 28.
♦ Congress did not repeal § 2241 by implication. Neither the
IIRIRA nor the AEDPA address or amend the habeas jurisdiction of the
district courts under section 2241 of title 28.
♦ In similar cases before the court, the court held that since the
AEDPA makes no mention of our authority to hear habeas petitions filed
as original matters in this court, we decline to find a repeal of § 2241 of
title 28.
♦ No indication that Congress intended to take the dramatic and
arguably unconstitutional step of repealing the habeas statute with roots
traceable to our nation’s beginning.
♦ § 2241 provides in relevant part that writs of habeas corpus may
be granted by the USSC, any justice thereof, the district courts, and any
Cir. court within their respective jurisdictions.
• In immigration contexts, physical restraint is not required for habeas jurisdiction.
Where the petitioner is subject to a final order of deportation, the custody requirement
is satisfied.