Immigration Law and Procedure in a Nutshell

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ISBN: 9780314154163 | 0314154167
Cover: Paperback
Copyright: 1/1/2005

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History of U.S. Immigration Law and Policy; Source and Scope of the Federal Power to Regulate Immigration and Naturalization; Administrative Structure of Immigration Law; Congressional Role in the Immigration Process; Immigrant Visas; Nonimmigrant Visas; Nonimmigrant Visas for Students; Removal; Inadmissibility; Refugees and Asylum; International Law Issues Related to Immigration; Citizenship (Including Naturalization); Rights of Aliens in the United States; Criminal Aspects of Immigration; Ethical Dimensions of Immigration Practice.

Preface

iii

Explanatory Notes

vii

Table of Cases

xxix

Table of Other Authorities

xlvii

History of U.S. Immigration Law and Policy

(52)

Colonial Immigration

(2)

Early U.S. Immigration Policy

(3)

Restriction Begins: Excluding the Unwanted

(4)

The Quota Laws

(5)

The 1952 Act and Later Amendments

(6)

The 1986 Immigration Reform and Control Act (IRCA)

(7)

Amnesty for Undocumented Non-Citizens

(3)

Visa Lottery Programs

(1)

The Immigration Act of 1990

(12)

Overall Increase in Worldwide Immigration

(1)

Family-Sponsored Immigration

(1)

Employment-Related Immigration

(3)

Diversity Visas

(1)

Inhabitants of Hong Kong

(1)

Refugees and Temporary Protected Status

(1)

Nonimmigrant Provisions

(1)

Naturalization

(1)

Grounds for Exclusion

(1)

Health-Related Exclusion

(1)

Crime-Related Exclusion

(1)

Security as a Ground of Exclusion

(1)

Communists

(1)

Exclusion for Misrepresentation

(1)

Grounds for Deportation

(1)

Marriage Fraud

(1)

National Security Concerns

(1)

Further Reform

(1)

The Violent Crime Control and Law Enforcement Act of 1994

(1)

The Acts of 1996 (AEDPA and IIRIRA)

(5)

Major Provisions of the 1996 Acts

(2)

Judicial Response to the 1996 Acts

(1)

Immigration Legislation, 1996-2002

(1)

Immigration Law as a Consequence of September 11, 2001

(4)

Department of Homeland Security

(1)

Restrictions on Immigration

(1)

Monitoring of Non-Citizens in the U.S.

(1)

Investigations and Detentions

(1)

Moral and Policy Issues of Immigration

(4)

The Source and Scope of the Federal Power to Regulate Immigration and Naturalization

(30)

The Source of the Federal Power

(7)

The Commerce Clause

(1)

Other Constitutional Provisions

(1)

National Sovereignty

(1)

Delegated Versus Inherent Power

(3)

The Scope of the Federal Power

(10)

Plenary Congressional Power

(5)

Permissible and Impermissible State Regulations

(5)

The Functions of the Three Branches of the Federal Government in Regulating Immigration

(13)

The Legislature

(2)

The Judiciary

(1)

Decisions Relating to Exclusion (Now ``Inadmissibility'')

(2)

Resident Alien Cases

(4)

Naturalization Cases

(1)

Asylum Cases

(1)

The Executive

(3)

Administrative Structure of Immigration Law

(14)

The Department of Homeland Security

(4)

The U.S. Citizenship and Immigration Services

(1)

The U.S. Immigration and Customs Enforcement

(1)

The U.S. Customs and Border Protection

(1)

Asylum Adjudication

(1)

The Department of State

(3)

The Department of Justice

(4)

The Immigration Courts

(1)

The Board of Immigration Appeals

(1)

Other Units

(1)

The Department of Labor

(2)

The Department of Health and Human Services

(1)

The Congressional Role in the Immigration Process

(15)

Introduction

(1)

Legislation

(1)

Private Legislation

(5)

The Theory

(1)

The History of Private Legislation

100

(3)

How Private Legislation Works Today

103

(1)

Members of Congress as Ombudsmen

104

(1)

Oversight of the DHS

105

(2)

Executive Consultation With Congress

107

(5)

Refugees

107

(3)

Cancellation of Removal (Formerly ``Suspension of Deportation'')

110

(2)

Immigrants

112

(36)

Introduction

112

(1)

Immigrants Not Subject to Numerical Limitations

113

(6)

Immediate Relatives of U.S. Citizens

113

(1)

Children

113

(2)

Parents

115

(1)

Spouses

115

(4)

Immigrants Subject to Numerical Limitations

119

(11)

Preference Categories

122

(1)

Family-Sponsored Preferences

122

(2)

Employment-Related Preferences

124

(4)

Diversity Immigrants

128

(2)

Inhabitants of Hong Kong and Other Special Groups

130

(1)

Special Immigrants

130

(2)

Procedural Requirements

132

(16)

Petitions and Certification

132

(1)

Family-Sponsored Immigration Petitions

132

(2)

Employment-Based Immigration Petitions

134

(5)

Self-Petitioning

139

(2)

Affidavit of Support

141

(1)

Priority Dates

142

(1)

Processing for Immigrants Outside the U.S.

143

(2)

Visa Issuance and Admission

145

(1)

Permanent Resident Procedures for Immigrants Already Inside the U.S.

146

(2)

Nonimmigrant Visitors and Temporary Workers

148

(37)

Diplomatic Personnel

149

(1)

Temporary Visitors

150

(3)

Visitors in Transit

153

(1)

Crew Members

154

(1)

Treaty Traders and Investors

155

(2)

Academic Students

157

(1)

International Organization Representatives

158

(1)

Temporary Workers

159

(5)

Information Media Representatives

164

(1)

Exchange Visitors

165

(1)

Fiance(e)s and Spouses of U.S. Citizens

165

(2)

Intracompany Transferees

167

(1)

Vocational Students

168

(1)

Relatives of Employees of International Organizations

169

(1)

Persons With Extraordinary Ability

169

(1)

Internationally Recognized Athletes and Artists

170

(1)

Cultural Visitors

171

(1)

Religious Workers

172

(1)

Witnesses and Informants

173

(1)

Victims of Trafficking in Persons

173

(1)

Victims of Domestic Violence

174

(1)

Spouses and Children of Lawful Permanent Residents

175

(1)

Canadian and Mexican Business Travelers and Their Families

175

(1)

Procedural Requirements for Nonimmigrant Visas

176

(6)

Changing Nonimmigrant Classification

182

(1)

Adjustment of Status to Immigrant

183

(2)

Nonimmigrant Students

185

(23)

Introduction

185

(2)

Coming to the U.S. as a Student

187

(2)

Family of the Student

189

(1)

Duration of Status

189

(5)

Full Course of Study

190

(1)

Deadline for Completion of Studies

191

(1)

Transferring or Changing Educational Levels

191

(1)

Vacations and Other Interruptions

192

(1)

Student and Exchange Visitor Information System (SEVIS)

192

(2)

Employment

194

(3)

On-Campus Employment

194

(1)

Off-Campus Employment

195

(2)

Practical Training

197

(2)

Curricular Practical Training

197

(1)

Optional Practical Training

198

(1)

Change to or From F-1 Non-Immigrant Status

199

(1)

Violation of Student Status: Consequences and Risks

200

(3)

Reinstatement to Student Status

200

(2)

Re-entry upon Violation of the Student Status

202

(1)

Adjustment to Permanent Resident Status

202

(1)

Inadmissibility

203

(1)

M-1 Students

203

(1)

J-1 Exchange Students

204

(4)

Grounds for Inadmissibility and Removal

208

(40)

Inadmissibility

209

(23)

The Meaning of ``Admission''

209

(1)

Admission vs. Entry

210

(4)

Grounds of Inadmissibility

214

(2)

Health-Related Grounds

216

(1)

Criminal and Related Grounds

217

(1)

Crimes of Moral Turpitude

218

(1)

Exceptions and Waivers of the Criminal Grounds

219

(2)

Security and Related Grounds

221

(3)

Inadmissibility for Violations of Immigration Law or Procedure

224

(1)

Illegal Entrants and Immigration Violators

225

(1)

Previous Removal and Unlawful Presence

226

(3)

The Public Charge Ground

229

(1)

Other Grounds of Inadmissibility

230

(1)

Labor Certification

230

(1)

Documentation Requirements

230

(1)

Persons Ineligible for Citizenship

231

(1)

Miscellaneous

231

(1)

Removal

232

(16)

General Considerations

233

(1)

Grounds for Removal

234

(1)

Inadmissibility at Entry and Status Violations

234

(2)

Criminal Grounds

236

(1)

Crimes of Moral Turpitude

237

(2)

Aggravated Felonies

239

(3)

Other Criminal Grounds

242

(1)

Avoiding the Immigration Consequences of Crimes

242

(1)

Registration Requirements

243

(1)

National Security Grounds

244

(2)

Other Removal Grounds

246

(2)

Removal Proceedings and Relief From Removal

248

(71)

Investigation and Apprehension

249

(20)

Immigration Service Powers Prior to Arrest

250

(1)

Outside the Territorial Bounds of the United States

251

(1)

Pre-Inspection

251

(1)

Interdiction

252

(2)

Operation ``Global Reach'' and Alien Smuggling

254

(1)

At the Border

255

(3)

100 Miles Inside the Border

258

(1)

Investigatory Stops for Identification

258

(3)

Temporary Detention for Questioning

261

(1)

Interior of the United States

262

(1)

Enforcing Restrictions on Employment

262

(1)

``Special Circumstances''

263

(1)

Delegation to Local Law Enforcement

263

(2)

Arrests

265

(1)

Arrests Without a Warrant

265

(2)

Arrests with a Warrant

267

(1)

Release on Bond or Personal Recognizance

267

(2)

Decision Not to Continue Removal Proceedings

269

(1)

Removal Hearing

269

(16)

Notice to Appear

269

(2)

Participants in the Removal Hearing

271

(1)

Immigration Judge

272

(1)

Service Counsel

273

(1)

Counsel for the Non-Citizen

274

(1)

Interpreter

274

(1)

The Non-Citizen's Rights During the Removal Hearing

275

(2)

The Hearing

277

(1)

Conduct of the Hearing

277

(1)

Evidence

278

(1)

Ancillary Matters

279

(1)

Additional Charges

279

(1)

Designation of Country and Application, for Discretionary Relief

280

(1)

The Decision

281

(1)

The Removal Hearing for Inadmissible Non-Citizens

282

(2)

Expedited Removal for Aggravated Felonies

284

(1)

Relief From Removal

285

(22)

Discretionary Relief

285

(1)

Voluntary Departure

286

(3)

Cancellation of Removal

289

(6)

Section 212(c) Relief

295

(1)

Adjustment of Status

296

(2)

Asylum

298

(2)

Stay of Removal

300

(1)

Parole

300

(2)

Registry

302

(1)

Other Forms of Relief

302

(1)

Restriction on Removal

302

(2)

Temporary Protected Status

304

(1)

Other

305

(1)

Estoppel

305

(2)

Appeals

307

(9)

Motion to Reopen or Reconsider

307

(2)

Administrative Appeals

309

(2)

Judicial Review of Removal Orders

311

(1)

Limitations on Judicial Review

311

(1)

Habeas Corpus Proceedings

312

(1)

Procedural Requirements

313

(3)

Post-Removal Detention

316

(3)

Refugees and Asylum

319

(47)

Refugees

319

(5)

Asylum

324

(42)

``Withholding of Removal'' (formerly ``Withholding of Deportation'')

327

(1)

Convention Against Torture

328

(3)

Burden and Standard of Proof in Asylum Cases

331

(1)

Well-Founded Fear of Persecution

331

(6)

Basis for Asylum

337

(4)

Basic Asylum Application Procedures

341

(1)

Jurisdiction and Judicial Review

341

(3)

The Application Process

344

(4)

Bars to Asylum

348

(6)

Right of Notice

354

(2)

Employment

356

(1)

Approval and Adjustment of Status

357

(2)

Temporary Protected Status

359

(4)

ABC Settlement and NACARA

363

(1)

The ABC Settlement

363

(1)

NACARA

364

(2)

International Law Issues Related to Immigration

366

(31)

Freedom of Movement

366

(6)

Freedom of Exit

366

(2)

Right to Return

368

(1)

Right to Enter

369

(1)

Right to Travel

370

(2)

The Rights of Stateless Persons

372

(3)

The Rights of Refugees

375

(11)

Right Not to Be Returned, and Suffer Torture or Ill-Treatment

382

(4)

Asylum

386

(5)

The Right to Grant Asylum

386

(2)

The Right to Receive Asylum

388

(3)

The Rights of Migrant Workers

391

(3)

Rights of Non-Citizens

394

(3)

Citizenship

397

(87)

Concepts of Citizenship

397

(7)

Citizenship and Alienage

397

(2)

The Principles of Jus Soli and Jus Sanguinis

399

(2)

Dual Nationality

401

(3)

Methods of Obtaining Citizenship

404

(52)

Citizenship at Birth

404

(1)

Birth Within the United States

404

(4)

Birth in the Territories of the United States

408

(3)

Birth Outside the United States

411

(1)

Persons Born Abroad Before May 24, 1934

412

(1)

Birth Abroad Between May 24, 1934, and January 12, 1941

412

(1)

Birth Abroad Between January 13, 1941, and December 23, 1952

413

(1)

Persons Born Abroad After December 23, 1952

413

(1)

Amendments to the 1952 Act

414

(2)

Children Born Out of Wedlock

416

(2)

Citizenship by Naturalization

418

(1)

Historical Development

418

(3)

Requirements of Naturalization

421

(1)

Residence and Physical Presence

421

(4)

Age

425

(1)

Literacy and Educational Requirements

426

(1)

Good Moral Character

427

(8)

Attachment to Constitutional Principles

435

(3)

Oath of Allegiance to the United States

438

(3)

Relaxed Requirements for Particular Persons

441

(1)

Persons Serving in the Armed Forces

441

(2)

Spouses of United States Citizens

443

(2)

Children of Citizens and Derivative Citizenship

445

(1)

Persons With Disabilities

446

(2)

Hmong Veterans

448

(1)

Naturalization Procedures

449

(1)

Jurisdiction to Naturalize

449

(1)

Application

449

(2)

Examination

451

(1)

Hearing on Denial of Application

452

(1)

Administration of Oath and Judicial Review

452

(1)

Certificate of Naturalization

453

(3)

Loss of Nationality

456

(28)

Introduction

456

(1)

Denaturalization

456

(1)

Congress' Power to Denaturalize

456

(1)

Denaturalization Procedures

457

(1)

Judicial Proceedings

457

(1)

Administrative Denaturalization

457

(1)

Grounds for Denaturalization

458

(1)

Concealment of Material Fact or Willful Misrepresentation

458

(7)

Illegal Procurement of Naturalization

465

(1)

Residence in Foreign Country Within One Year After Naturalization

466

(1)

Other Grounds for Denaturalization

467

(1)

Effect on Spouses or Children

468

(1)

Expatriation

468

(1)

Introduction

468

(1)

Development of the Law of Expatriation

468

(2)

The Power of Congress to Prescribe Grounds for Expatriation

470

(8)

Methods of Expatriation

478

(1)

Obtaining Naturalization in a Foreign State

478

(1)

Oath of Allegiance to a Foreign State

478

(1)

Military Service in a Foreign State

478

(1)

Foreign Government Employment

479

(1)

Formal Renunciation of Nationality

479

(1)

Acts of Treason and Subversion

480

(1)

Repealed Expatriation Provisions; Burden of Proof; and Age of Maturity

480

(2)

Expatriating to Avoid Taxation

482

(2)

The Rights of Non-Citizens in the United States

484

(71)

Introduction

484

(2)

The Experience of Being a Non-Citizen in the United States

486

(1)

Discrimination on the Basis of Alienage

487

(33)

Introduction

487

(1)

State Discrimination

488

(1)

Historical Treatment: Before Graham v. Richardson

488

(4)

Modern Treatment

492

(11)

Federal Discrimination

503

(1)

Introduction

503

(1)

Judicial Deference to the Political Branches: Special Federal Interests

504

(3)

Protection Under the Fifth Amendment

507

(7)

Implications of the Current Approach

514

(5)

Conclusion

519

(1)

Other Rights and Duties of Non-Citizens

520

(35)

Right to Vote

520

(1)

Capacity to Use the Courts

521

(1)

Federal Question Jurisdiction

521

(1)

Federal Diversity Jurisdiction

521

(1)

Alien Tort Claims Act

522

(2)

Sovereign Immunity

524

(2)

Enemy Aliens and Enemy Combatants

526

(1)

Education

526

(3)

Eligibility for Federal Benefit Programs

529

(6)

Freedom of Speech

535

(2)

Non-Citizen's Rights and National Security

537

(1)

Questioning of Non-Citizens and Selective Enforcement of Immigration Laws

537

(2)

Detentions

539

(1)

Secret Hearings

540

(1)

Labor Laws

541

(3)

Driver's Licenses

544

(1)

Military Service

545

(1)

Right to Own Land

546

(3)

Federal Taxation of Non-Citizens

549

(6)

Criminal Aspects of Immigration

555

(31)

Introduction

555

(1)

Criminal Provisions Related to Immigration

555

(26)

Unlawful Entry

555

(1)

Entry at Improper Time or Place; Evading Inspection; Misrepresentation

555

(2)

Re-Entry After Removal

557

(2)

Removal Consequences of Unlawful Entry

559

(1)

Crimes Related to Facilitating a Non-Citizens' Unlawful Entry or Continued Unlawful Presence in the United States

560

(3)

Bringing Non-Citizens into the United States

563

(1)

Transporting a Non-Citizen Within the United States

563

(2)

Concealing, Harboring, or Shielding a Non-Citizen

565

(1)

Inducing a Non-Citizen to Enter

566

(1)

Aiding or Assisting a Subversive Non-Citizen to Enter the U.S.

567

(1)

Importing a Non-Citizen for an Immoral Purpose

567

(1)

Immigration Consequences of Bringing in, Transporting, or Harboring Non-Citizens

568

(1)

Related Civil Penalties

568

(2)

Failure to Comply With Registration Requirements

570

(2)

Misrepresentation, False Statements, Fraud, and Conspiracy

572

(1)

Perjury

572

(1)

False Claim to Citizenship

573

(1)

False or Fraudulent Statements and Representations

574

(1)

Fraud and Misuse of Visas, Permits, and Other Documents

575

(1)

Conspiracy

576

(1)

Marriage Fraud

577

(1)

Failure to Comply With Removal Proceedings

577

(1)

Failure to Comply With Supervision Regulations

577

(1)

Failure to Depart

578

(1)

Employment of Undocumented Workers

579

(2)

Immigration Consequences of Criminal Activity

581

(5)

Ineligibility for Admission

581

(1)

Removal

582

(2)

Failure to Establish Good Moral Character

584

(1)

Denial of Asylum

584

(2)

Ethical Dimensions of Immigration Practice

586

(16)

Must the Lawyer Report His or Her Client to the Immigration Authorities?

589

(4)

Reporting the Client's Activities

590

(2)

Advising the Client

592

(1)

Should the Lawyer Tell the Client About a Fixed Intent to Immigrate?

593

(4)

Whom Does the Lawyer Represent?

597

(5)

Conclusion

602

(2)

Bibliography

604

(21)

Laws and Regulations

604

(3)

Cases and Decisions

607

(1)

History

608

(1)

Books, Treatises, and Digests

609

(7)

Periodicals

616

(2)

Country Reports

618

(1)

Bibliographies and Research Guides

619

(1)

Electronic Sources

620

(5)

Index

625

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Immigration Law and Procedure in a Nutshell

Summary

Table of Contents

Supplemental Materials