Power of Congress
–Commerce Cla., Migration & Importation Cla, Naturalization Cla, War Cla
Chae Chai Ping: Cited for prop that congress can regulate immigration.
-Prenumbral Powers, Obviousness theory
-Ekiu – Courts can review administrative fact findings.
Mezai– Due process what congress says it is
Landing: once person in country, some procedural due process rts may attach.
Zadvydas– can’t detain for more than six months
INS v. Chadha: court can decide whether means used by Congress constitutional
Yung June Kim– detention during removal proceeding xnl cuse not more than 6 mths
Immediate Relatives § 201(b)-spouses, parent (citizen at least 21), Children (unmarried, under 21)
Family-Sponsored § 203(a)
–unmarried sons & daughters of citizens
-spouses and unmarried son/dau of LPRs
-Married son/dau of citizens
-siblings of US citizens (at least 21)
Marriage Fraud § 216A
-applies to NC who gets status as immediate relative, 2nd preference, fiancé of citizen
-Must file petition within 90 days of 24 months expiration. If no, terminated. If fail to show up interview, terminated.
-waiver if extreme hardship § 216(c)(4)(A) or extreme cruelty § 216(c)(4)(B)à still has to show good faith entering into marriage
-2 year foreign residence rqt if marriage during NC’s proceedings
Parents Children etc.
–Matter of Mourillon– Step child because marriage before 18 and stayed as family.
-out of wedlock- Father must prove bona fide parent-child relationship § SEE 101(b)
Employment Related Immigrants § 203(b)
1st– Extraordinary Ability (executives, musicians, athletes, outstanding professors, researchers)
2nd– Exceptional Ability (advanced degrees) Need JOB OFFER + Labor Certificateà NO job offer if National Interest
3rd Skilled Workers (BAs & professionals) + unskilled workers where no US workers LABOR CERTIFICATE RQD
4th Special Immigrants § 101(a)(27)
5th Entrepreneurs- Bring money and employ at least 10 Am workers. Conditional.
Labor Certification § 212(a)(5)(a)
-Schedule A- Pre certified- Nurses
Schedule B- NO LABOR CFT Taxi drivers, typists, waiters
–Matter of Marion Graham– Job rqtms unduly restrictive.
–Matter of Tel-Ko– significant portion of biz in foreign lang,
Diversity Visas § 203(c)
–See Pg. 667
Student Visas- 1. have foreign residence w/no intent abandoning, bona fide student pursue full course of study, enter US temporarily and solely for pursing edu, study institution appr by US
-Health Related § 212(a)(1)
-Public Charge § 212(a)(4), Sponsor 213(a)
-fraudulent documents or misrepresent as citizen
-NC living without admitted or paroled §212(a)(6)(A)
-failure to attend removal proceedings inadmissible for 5 yrs. 212(a)(6)(B)
-Out of Status NCs- continuous not aggregate 212(a)(9)(a-c)
Terrorist Activities § 212(a)(3)(B)(i)
Foreign Policy 212(a)(3)(C)
Totalitarian Party 212(a)(3)(D)
Criminal Grounds 212(a)(2)
-CMIT Exceptions- under 18 and more than 5 yrs. or max penalty not more than 1 yr or if convicted, not more than 6 months
-but if multiple crimes and aggregate 5+ yrs, inadmissible, no waivers
Drug offenses § 212(a)(2)(C-I)
212(h) Waiversà Ag discretionàimmigrant w/fam ties in US and exclusion hardship to fam, those sub to domestic violence. If Prostitution (h), pros occurred 15 yrs ago, rehabilitation, extreme hardship to fam.
BUT NO WAIVER FOR MURDRERS TORTURE, CONSPIRACY, also, if previous in US and not for 7 years
Adjustment of Status § 245
NC admitted or paroled, immigration visa must be immediately available, can’t be nonimmigrant who engaged in unauthorized employment, NC under 1st, 2nd, 3rd, 4th employment preference may adjust status even if out of status if not for more than 180 days.
//2Ai-v: CiMT w/in 5 ys; >1 crimes;agg felony; high-spd flight; waiver if pardon//2B: drug crimes orabuser/addict//3C: doc fraud butwaiver for LPRs//3D: false claim of citizenship but except’n//4: securityw/ xcptns = to 212a3C//5: public charge w/in 5 yrs
//relief//240Aa,b: cancell’n for LPRs; nonLPRs; battered spouse,kid//240Ac: ineligibility of J visas// 240Ad: rules for continuous presence//240Ba-f: voluntary departure (VD), ineligible if got VD before; no JR
//detention//mandatory 236:arrest,detain pend’g decision of removal; can release on bond BUTnot if crime-based//no JR//241a: detention/removal procedure
//235a-c: expedited removal for inadmissible arriv’g aliens; based onsecurity//238: expedited removal ofagg felons; nonLPRs have protect’ns, 14 days to get JR//VS 239 & 240: *notice, *counsel,*present evidence,*based on rsnble, subst’l, probative evid
NC convicted of removable offense, but not AF, may eligible for discretionary relief from IJ:
–Cancellation of removal for resident 240(A)a
–cancellation of removal for nonresident
–adjustment of status
–Ag may admit refugee who not firmly resettled
-spouses and children accompanying or following to join
-exempted from some exclusion grounds
-AG can terminate the status later if applicant didn’t meet def of refugee.
Asylum & Withholding
§208(1) AG can grant if fear of persecution on race, religion, nationality, membership in social group, political opinion
Acosta– taxi no social group, also can relocate
Social Groupà immutable characteristic (sex, color, kinship, ties, past experience), if not, then members of group closely affiliated, driven by common motive or interest, voluntary associational relationship exists, group recognized to be societal faction or recognized segment, members view themselves as members of the group
Matter of Toboso-Alfonsoà homo social group
Hernandez-Montielà clothes manifestation of sexual orientation
Genderà Fatin v. INSà wom no social group
-Matter of Kasingaà FGM persecution. Social group immutable (woman member of tribe), fundamental characteristic (intact vagina)
EXCEPTIONS TO ELIGIBILITY
-Firm Resettlement § 208(b)(2(A)(vi), Past wrongdoing 208(b)(2)(A)(i to v)(participated in persecution) Matter of Carballeà if commit serious crime= threat to community, terrorist activity, etc.
expedite removal under § 235
SEE PG. 816
–§ 274A Er sanctions if knowingly hire, recruit, or refer for a fee unauthorized alien
– Mester Mfg: constructive knowledge enough.
– Collins Foods– documents need genuine on face.
§ 274(B)(a) Does not apply if have <3 employees.
-can discriminate against because of national origin or if protected, because of citizenship.
–a citizen or national
–someone who has benn lawfully admitted and who has the rt. to work, UNLESS, failed to naturalize within six months when eligible.
–anybody who has applied for naturalization within 6 months, but not received yet
-Party must file with OSC within 180 days
Jui Sanguis: citizenship acquired at birth
§ 1101(a)(29) if born in somoa, NC national
Jui Sanguis- acquired by descent
After birth—have to be lawfully admitted § 318
Have to reside for 5 years SEE § 316
-Applicants disqualified if within 10 year or btw filing or oath advocated violent overthrow of the US gov, or member of totalitarian party or communist party
-AG can start proceedings if naturalization by illegally or concealment of material fact or willful misrepresentation- Get 60 day notice
-Lose if voluntary do any with intent to relinquish citizenship. See § 349(a)
-Afroin- one must consent to renouncement
-Schuck & Smith- Devaluation of citizenship