• Citizenship

• Conceptual Framework of Citizenship

o Linear: start as noncitizen, slowly progress toward citizenship
o Bull's-eye: citizenship is center of target
o Citizenship as an instrument and object of closure (Brubaker)
 Instrument: various rights only open to citizens
• Voting, right to remain, etc.
 Object: citizenship only available to the qualified
• Regime of naturalization laws, one of which is residence. Closure circular.
o Citizenship as important distinction
 "Nothing less than the right to have rights." Perez v. Brownell, CJ Warren dissenting
 Rheinquist dissent, Sugarman v. Dougall
• Citizens have a status and relationship to society more important than mere presence
• "Citizens" are distinct subclass of all "persons"
o Citizenship as legal abstraction (Bickell)
 Exists at pleasure of state
 Emphasis on importance of citizenship leads to oppression of persons
• Easier to deem someone a noncitizen than a nonperson
o Citizenship as source of community (Hannah Arendt)
 For displaced persons, the "freedom of opinion is a fool's freedom, for nothing they think matters
anyhow.
• Dual Nationality
o Caused by...
 born in US to immigrant parents (citizen on US and where ever parents are citizens)
 born outside the US to parents who are citizens of the US
 when you immigrate and become a US citizen, which requires you to renounce citizenship in
home country, but if that home country does not allow such renunciation
 naturalize in the US and then loose home country citizenship, but you can re-apply
 marriage to a citizen of another county, if that other country allows you to gain the citizenship of
your spouse and you can keep your US citizenship
o Problem: usually seen as problem, to be avoided, but it is tolerated (Divided loyalty, Diplomatic
protection)
o US is OK with dual nationality -About ½ mil children born each year in US with dual citiz
• Acquisition of Citizenship
o Jus Soli: citizenship by birth within US territory
 Based on 14th Amendment
• Overruled Dred Scott ruling that children of freed slaves weren't citizens
 Initially read narrowly. Elk v. Wilkins [American Indians are not citizens}
 Currently read broadly. US v. Wong Kim Ark
 Exceptions
• born to foreign diplomats (b/c not subject to juris of US)
• born on foreign public vessels (warships)
• born on US soil during hostile occupation by another country

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 Arguments for jus soli rule
• Constitutional and Realism: Even children of those unlawfully present are subject to jurisdiction,
since gov't has jurisdiction to remove parents. This is what the Constitution says in plain language.
(Newman)
• Policy: Generations of noncitizens can lead to non-membership in society, resentment, exclusion,
disloyalty. You can see this effect in Europe. Consent can be withdrawn later, if desired. (Martin)
 Arguments against jus soli rule
• Schuck and Smith
o Constitution does not necessitate that those born in US to illegal or temporary visitor aliens be
automatic citizens b/c they are not really “subject to the jurisdiction” of the US - textual arg: you must
be born in US AND subject to jurisdiction
o framers would not have intended to assume one consented to jurisdiction merely by their birth –
“jurisdiction requirement” in 14 A was meant to limit scope of those who can become citizens by birth
o automatic citizenship for babies is an incentive for illegal migration (~200k babies born in US
each year to EWIs)
o allowing all, when 14A only meant to overrule Dread Scott, is too broad
o Citizenship is based on consent and not ascription.

o Jus Sanguinis: Citizenship by blood

 Purely a statutory rule. Not secured by 14th Amend.
 Requirements: INA §§301(c), (d), (e), (g), (h); 308(2), (4); 309
 Auto citizenship if both parents are US citzs and one had resided in US sometime prior § 301(c)
• Assumption that there will be stronger ties to the US
 If only 1 parent is citizen, then the one who’s a citizen must have been physically present in US
for 5 yrs before the birth of the child AND that 2 of those years be after the age of 14 (this time can be
amassed, can be total, it doesn’t have to be consecutive and you don’t have to have been a resident, you
just have to have been present) § 301(g)/ § 322
 Prior laws
• Born before May 24, 1934
o Father must have resided in US before birth
o Children of resident mothers added in 1994. INA §308(h)
• Born between May 24, 1934 and January 12, 1941
o Child must reside from age 13-18 and take loyalty oath
• Born between January 13, 1941 and December 23, 1952
o Citizen parent must have resided in US for ten years, at least 5 of which after age of 16
• Naturalization
o INA §§311-331 and §101(f) [good moral character]
o History: used to be done in state courts with no set rules and lots of fraud. In 1906 Cong gave
auth to fed ct and set up fed rules so there would be one national rule. 1990 naturalization taken from
judiciary and given to Exec branch – now under DHS.
 Cong has authority to make naturalization laws pursuant to Art I of the Constitution
 1790 naturalization limited to free wht people, living w/in, under juris, who’d been in US 2 yrs
 1790-1870 whites could naturalize, and after civil war blks could too – not Asians
 1872-1952 marked by bars to Asians

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• Chinese allowed to be citizens in 1943
 During WWII, only US and Germany had racially qual’s in immig/naturalization laws
 1952 Racial qual’s removed and addition of general prohibition on denial b/c of race
• §311 no denial b/c or race or sex
 Immig Act of 1990
 2003 INA abolished and immig moved under DHS
o Procedure for Naturalization
 Must file application (N-400) with USCIS to investigate qualifications. INA §334/a
• May be filed up to 90 days before applicant becomes eligible for citizenship. INA §334/a, 8 CFR
§334.2
• Application may not be withdrawn without CIS permission. INA §335/e
 Must have interview with naturalization examiner. INA §335/b
 Examiner makes determination within 120 days. INA §336/b
 Examiner's determination subject to review by another CIS officer, or federal district court. INA
§336/a, b
o Requirements for Naturalization:
 Residence [defined INA §101/a/33: principle place of dwelling w/out regard to intent]: INA
§316
• (1) reside continuously in US for 5 yrs as a LPR immediately prior to application for citiz AND
be physically present in US for at least ½ that time AND has resided in district where filed for 3 months
o “physically present” – allows break up to 6 mo, 6 mo to 1 yr presumes break, over 1 yr
automatically breaks continuity per INA §316(b)
 Exception for gov't employees
• (2) resided continuously in US from date of app to time of admission of citizenship
• (3) is and has been person of good moral character, attached to principles of Constit, and is well
disposed to the good order and happiness of the US
o define good moral character: INA §§101(f); 616(e)
o attachment to Constitution Principles: Purpose – to req that those becoming citzs like the US
ideas of community and democracy, that they’re in tune w/ ideas behind Bill of Rts
• IF married to Citz only has to reside “living in marital union” for 3 yrs INA §319(a)
 English Language Proficiency INA §312/a/1
• (1) must be able to read and write (added in 1960), and speak (added in 1906) words in English
o Exceptions: INA § 312(b)
 over 50 and LPR for 20+ yrs
 over 55 and LPR for 15+ yrs
 unable b/c of disability
o Policy: Why should we have this rule?
 Knowledge of history and civics. INA §312/a/2
• knowledge and understanding of fundamentals of history, and of principles & form of US
government
o Exceptions: INA §312/b/3
 Disabilities
 Over 65 and been here lawfully 20 yr+
• Oral test of Qs drawn from a bank of 100
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• Policy: Is it OK to require higher standard from people coming into our country? Why would we
want to do this?
 Age
• Naturalization not available before 18th birthday. INA §334/b/1.
o Children naturalize with parents, subject to residence. INA §320
 Good Moral Character. INA §316/a
• No definition. List of acts that are not good moral character in INA §§101/f
o Good moral character precluded if any of following committed within 5 years preceding
application. INA §101/f/1-6
 Habitual drunkard
 CIMT, prostitution, smuggling, drug trafficking, polygamy, non-citizen previously removed,
income from criminal gambling, 2 or more gambling convictions, false testimony for purposes of INA
benefits
• One <30-gram marijuana possession conviction is OK
o Conviction of Aggravated felony at any time automatically disqualifies. §101/f/8
o 180 days or more jail sentence within 5 years also disqualifies, regardless of when offense
actually occurred. INA §101/f/7
• Examiner may look to all history of applicant. INA §316/e (discretion to look outside of five
year “window”
 Attached to Constitutional Principles. INA §316/a
 POLICY: Does time in country indicate loyalty?
o Children born outside US
 Can Naturalize when one parent becomes citizen, if child is under 18, and the child is living in
the US and in legal and physical custody of citizen parent, including adopted [ INA § 101/b/1 “child”]–
considered derivative citizenship INA §320
 Children living outside US come in under INA §322
 Out of Wedlock INA §309
• Criteria for citizen fathers and children out of wedlock
o Clear and Convincing evidence of blood relationship,
o Father was US national at time of child's birth
o Father agrees in writing to financially support until 18 years, AND
o Before child's 18th birthday…
 Child legitimated in country of domicile
 Father acknowledges paternity in writing or under oath, OR
 Paternity established by competent court
• Exception for people born between 1941 and 1952
• Criteria for citizen mothers and children out of wedlock
o Citizen at time of child's birth and mother has a previous physical presence in US for one
continuous year
o Prohibitions on Naturalization
 No if member of Communist Party INA §313/a/4
• Exceptions apply like if you didn’t really know, under 16, had to for food or education. INA
§313/d

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 No if deserts the US armed forces during time of war or who leave to avoid a draft AND is
convicted by Ct Martial. INA §314
 No if you sought to get out of military on status as an alien. INA §315/a

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• Admission Categories
• Overview
o Categories
 Family-sponsored INA §203(a)
• inc Immediate Family Member INA §201(b)(2)(A)
 Employment based INA §203(b)
 Diversity INA §203c
 Refugees
o All have caps (except immediate family member)
• Procedure
o Petition procedures for immigrants outside US: INA §§204-206
o A person in the US (“petitioner”) files the visa petition to start the process in the US
 family member or employer
• family member petitioner goes to the USCIS
• employer goes to dept of labor to get a labor certificate, then USCIS (time of application is
considered to be time turned in DOL)
o If approved, USCIS sends on to foreign consular (DOS) facility nearest to beneficiary
 Consular officer checks admissibility under INA §212
o Waiting period exceptionally long (check listings)
o If already in US lawfully then you can get adjustment of status (INA §245) – You don’t have to
leave
• Family Sponsored Immigration – 480K [INA §203(a); or as immediate relatives of US citizen
INA 201(b)(2)(A)] – policy goal is to keep families together
o Immediate relatives:
 INA §201/b/2/A: children, spouses, and parents of a citizen who is over 21
• No quota INA §201/b/1/A/I
• “Child” defined: INA §101/b/1(p. 42)
o Under 21 & unmarried
 Aging-out protection exists. INA §201/f/1[time of application]
o Children born out of wedlock
 OK through natural mother
 OK through father if legitimated before 18th birthday
• Also OK if the father has had a bona fide parent-child relationship with child. INA §101/b/1/D
o Stepchildren: OK if marriage creating the relationship occurred before child turned 18 §
101/b/1/B
o Adoption
 Outside US: OK if child adopted before 16 and in legal custody of parents for two years. INA
§101/b/1/E
• Adopted children may immigrate at any age provided that the residence requirement is satisfied
and the adoption is completed before 16 years of age.
 Orphans: INA §101/b/1/F

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• OK if both parents have died, disappeared, or abandoned child, or if sole parent releases child to
emigration and adoption in writing.
• To immigrate as an immediate relative, an orphan must be adopted or be coming to the US to be
adopted by a U.S. Citizen at least 25 years of age
• May only immigrate while under the age of sixteen. 16-17 old children ma however quality for
orphan or adopted child status if their siblings has been adopted
• Parent defined INA §101/b/2- a parent who has any of the relationships described under the
definition of child. Meets the statutory definition of a parent.
o Petitioner must be at least 21 if filing for parent beneficiary. INA §201/b
• Spouse- in order to immigrate as the spouse of a US citizen the non citizen must have a valid and
subsisting marriage with that citizen. The validity of marriage is generally determined by the laws of the
country where the marriage took place. Do NOT include
o Proxy Marriages- unless marriage had been consummated
o Marriages adverse to public policy health and morals (incestuous or polygamous)
o Sham Marriages
 Easiest, quickest, and least hassle
 No quotas apply to immediate relatives of US citizens
• Immediate relatives NOT included in the cap of 480K
• However, immediate relatives do count toward 480K after 226K family sponsored preference
cap is filled
• Immediate relatives do NOT count toward the per country limit
o Family Sponsored
 Subject to ceiling – causes huge backlog - INA §203(a)

 Also subject to floor - set at 226K – meaning that 226 must come from these categories, then the
rest of the 480, + whatever more comes from immediate relatives [Don’t need to know #s, only
categories]
• 23,400 for unmarried sons and daughters of citizens – single kids, over 21(Cat. 1)
• 114,200 for spouses and unmarried sons/daughters of LPR (Cat. 2)
o (Cat. 2-A) spouses or children of LPR
o (Cat. 2-B) unmarried sons/daughters of LPR
o this is the only category for LPRs
• 23,400 for married kids of US citizens (Cat. 3)
o policy – they all ready have their own nuclear families AND then the rest of the family will be
eligible to come in
• 65,000 for brothers and sisters of US citizens (uses definition of “child” to see if sibling
relationship is satisfied) (Cat. 4)
o Derivative beneficiaries (Policy- Family Reunification)
 INA §203(d): spouse or child may be admitted in the same preference category and in the “same
order of consideration” (same spot on waiting list)
 Applies to any of the four family-sponsored categories, to employment-based immigrants, and to
diversity immigrants
 Policy – to keep nuclear families together

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 Applies for “accompanying” family and “following to join” members (catch is that the
following to join criteria says that the family member has to still be in the eligible category – still has to
be spouse or child under 21)
• This has been applied liberally in case law – 10 yrs would be too long
• Check 203(h) to see if it applies/ keep age at application and converts to appropriate category
 Doesn’t apply to “after-acquired” spouses or kids
 These family members count against the caps on immigration for the categories
 OLD RULE is that you had to still be in the category when you arrive in US –meaning you had
to be under 21 when you enter
 Current Rule: Child’s age counts at time when parent becomes LPR. INA §203/h.
• Derivative status must be claimed w/in one year of beneficiary getting LPR status. INA
§203/h/1/A
o Policy Issues/Considerations
 What kinds of marriages are we going to allow? (See below)
 Which families count?
• Marriage-Based Immigration: INA §201(b)(2)(A)(i) - one of the main ways, 1/3 of all
immigration
o Place of celebration rule will be allowed (accepts marriages valid elsewhere), unless otherwise
prohibited by laws or policies
 Exceptions: INA §101/a/35
• marriages solely for immig benefits not recognized
• where persons are not together UNLESS consummated
• where recognition conflicts w/ pub policy: polygamous marriages, btwn first cousins, same-sex
o General Policy-The government must find a balance between the objective of family
reunification and avoiding fraud or abuse.
o DOMA – says that in any Act of Congress (any fed law) marriage is only btwn 1M and 1W
 Essentially codifies Adams v. Howerton decision.
o Sham Marriage Problem
 Hard to tell, lots of them, most go undetected
 Some clues: language barrier; stark racial, ethnic, cultural, age differences
o Pre-IMFA
 9th Cir Cases
• When determining whether alien should get adjustment of status based on marriage to citiz, the
focus should be on the intent surrounding the marriage, intent to estab life together at time of marriage,
and not on how the relationship has worked after marriage. Bark v. INS, 1975
• If a marriage is not a sham or fraudulent from inception, then it is valid for purposes of
determining eligibility for adjustment of status under §245 (Dabaghian, 1979)
o IMFA (Immig Marriage Fraud Amendment of 1986)
 If marriage is less than 2 yrs old the LPR status is granted on “conditional basis” INA §216
• Conditional basis lasts 2 yrs
• Doesn’t apply to derivative [203(d)] spouses. INA § 216/g/1/C
• LPR status can be terminated if DHS finds (during 2 yrs) that marriage was improper or has been
judicially annulled or terminated – LPR is then deportable

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• Conditional basis is removed after 2 yrs if DHS finds marriage was valid and has not ended –
means person gains full LPR status – if denied, person is deportable
• Divorce kills chances of permanent LPR status §216/b/1/A/ii, unless waiver granted under
§216/c/4/B.
• Death of spouse – if you are married and then spouse dies, termination process not required. INA
§216(b)(1)(A)(ii), §216/c/1/A
 DHS can interview both spouses
• Petitioner has the burden of proof, clear and convincing evidence standard in interview
process
 Both must petition DHS 90 days before 2yr period is up in order to have conditional basis
removed. INA§216/d/2/A (From I-751)
• If they don’t, spouse is here illegally and is deportable – affirmative obligation per INA
§216/c/1/A
• Must appear for interview. INA §216/c/1/B
 DHS will grant petition if still married AND they find marriage was not sham
• Entered into in accordance with the laws of the place where the marriage took place
• Has not been terminated
• Was not entered into for the purpose of procuring an alien’s admission as an immigrant;
• No fee or other consideration was for the filing of petition [other than to atty]
 Determination of deportability is reviewable by IJ – DHS has burden of proof (preponderance of
the evidence). INA §216/c/3/D
 Waiver available if couple cannot file jointly for petition. INA §216/c/4
• (A) Extreme hardship to the alien;
• (B) Was entered into in GF, but no longer married and it’s not alien’s fault that they can’t file
jointly;
• (C) Subject to battery or extreme cruelty
 IF DHS finds marriage to be a sham, Terminates condition – alien is deportable, Removal
proceedings begin - Burden to show sham is on DHS. INA §216/b/2
 IF in Removal proceedings, can’t cure removal prob w/ marriage (by being admitted per INA
§204/g or by adj of stat per INA §245/e) unless there is clear and convincing evid that marriage was not
entered into to get out of the removal procedure. INA §245/e/3
• If cannot meet C&C stand, must leave US for 2 yrs beginning after date of marriage. INA §204/g
 Subsequent marriages requirements. INA §204/a/2/A
• LPR more than 5 yrs
 Policy Considerations: this statute looks at marriage 2 yrs later, presumption that GF marriages
will be in place 2 yrs later – how does this law fit w/ concepts of congruence, administrability,
transparence?
o VAWA
 Battered spouses and children can self-petition and not required to show hardship. INA
§204/a/1/A-B
 Criminal acts may be disregarded if connected to battery. INA §204/a/1/C
 Some grounds of inadmissibility may be waived if connected to battery.
• INA §212/a/6/A/ii, a/9/B/iii/IV, a/9/C/ii, INA§237/a/7.

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• Employment-Based Immigration – 140K [INA 203(b)]  See below for how to use
this preference
o 40,000 for “priority workers” (if in this category you do not need a sponsoring employer, don’t
need labor certificate) (25% of all persons coming in under employment immig)
 aliens with “extraordinary ability” (reqs “sustained national or international acclaim”)
 outstanding professors and researchers
 certain multinational executives and managers (defined in INA §101/a/44)
o 40,000 for professionals w/ advanced degrees or equivalent, need labor cert
 services must be sought by emplr or waived by AG
o 40,000 for those with bachelor degrees and skilled and unskilled (no more than 10,000) workers
to fill positions where there is a shortage of Am workers, need labor cert
o 10,000 for “special immigrants” INA §101(a)(27)(C) – (J)
o 10,000 for investors in US economy - whose investments will create a minimum of 10 jobs in US
 min investment 1mil, idea that they will create jobs
o Derivative status allowed under INA §203(d), but the families count against the caps
• Procedure
o 5 pref cats in 203(b) and labor cert req’ed for categories 2 & 3
o Dictionary of Occupational Titles (DOT)/O*NET (Occupational Information Network)
o Labor certificate – req’ed for categories 2 (professional w/adv deg) & 3(skilled, professionals,
others). INA §212(a)(5)(A) (p. 125)
 employers must go to DOL and demonstrate:
• Entry will not adversely affect the wages and working conditions of similarly employed US
workers. INA §212(a)(5)(A)(i)(II)
• No domestic workers to perform such work, no willing/qualified in US “at the place where the
alien is to perform the job. INA §212/a/5/A/i/I
o must show good-faith effort to recruit qualified US workers
 detailed advertising, interviewed interested persons, rejected for lawful job-related reason,
offered “prevailing wage,” can pay that wage, req’mts of job are not unduly restrictive
o job req’mts must bear reasonable relationship to occupation in context of emplr’s business and
must be essential to perform job duties. Information Industry
 ie: golf cannot be a bus necessity for a lawyer, but speaking a particular lang would be bus nec
for translator at UN
o DOL has “schedules” that determine whether certain job either get labor cert or don’t – If the job
is not in either (most jobs), then apply for cert (determined case-by-case)
 Schedule A – do NOT need cert – (where DOL sees chronic shortages of qualified US workers)
only licensed nurses and physical therapists and those of exceptional ability in sci or arts, inc some
performing artists
 Schedule B – certs are NOT issued - DOL thinks US has sufficient US workforce like truck
drivers, cashiers, bartenders, etc
• file ETA-750 with SWA (state work agency)
 What employers should do to get worker in
• Advertise (write a very specific listing)
• Determine prevailing wage req’mt

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• Do best to find US worker
• Keep records of search for 5 yrs
• Go to DOL to get labor certificate and bring alien to US
 Reduction in Recruitment (RIR) Procedure -streamlining measure to reduce wait for emplrs
• priority adjudication – fast track – decision in matter of weeks, now eliminated by PERM
 PERM – Program Electronic Review Management
• Eliminated standard and RIR processing – now single unified system
• Largely eliminated role of SWAs
• Fundamental conceptual framework for labor certs still same
o Information Industries, Board of Alien Labor Certification Appeals (BALCA) 1989 –
 Stand for estab bus necessity: emplr must demonstrate
• (1) job req’mts bear reasonable relationship btwn the req’mts and the occupation, AND
• (2) req’mts are essential to perform job duties described, in a reasonable manner
• Standard presumes qualified American workers are available, but it’s not impossible standard to
meet
 Req/mts must be normal AND not unduly restrictive
o The Prevailing Wage Issue
 Tuskegee Univ – Bd said you need to look at more than just job title – also look at nature of
business/institution when comparing jobs, profit organizations are diff from non-profit
 Hathawya Children’s Services overruled Tuskegee – said that employers’ ability to pay does not
matter – not fair to allow substandard pay for on employer b/c of non-profit status and then not give
same privilege to mom-and-pop grocery store
o Sham employment offers – there’s a lot of bending the req’mts to get people in
 Accountant who’s also a computer programmer
 Woman who cares for neighbors Muslim kids, but is college educated, “nuged” to tutor qualified
to instruct kids in own culture and lang
 Emplr sanctions: crim sanctions / Rt to file future certs suspended / Must use supervised
recruitment in future
• Diversity Immigration – 55K Limit. INA §203(c)
o 55,000 per 1990 Act but now reduced to 50,000
o what countries and how many is decided on based on past 5 yrs of immigration history
o done by lottery
 winners can bring immediate fam but number counts against total diversity allocation
o must have HS diploma or equivalent or have 2 yrs experience in past 5 that reqs 2 yrs training or
2 yrs experience
o allocation of slots is very narrow
o really just a lottery
o if you get in you can then you can bring your family with INA §203(d) [derivative beneficiaries]
• Non-Immigrants – many people come under this, many non-immigrants end up staying
o Defined in INA §101(a)(15): defines “immigrant” as every alien except those coming as non-
immigs
o Inc: Students, Tourists(~allowed up to 6 mo), Business, Diplomats, Employees of foreign govs
(+ immd fam)

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o Non-citizen has burden of proving entitlement to nonimmigrant status, because there is a
presumption that every non-citizen who wishes to come here is an immigrant. INA § 214(b)(3)
 §214 governs the admission of non-Immigrants
o Most Important Requirement – that you have residence in foreign country that you have no
intention of abandoning
o Dual intent doctrine – come as tourist, but would stay in country if they could do so lawfully –
this is OK, but you cannot overstay your visa (not ok)
o 3 procedural paths
 apply for visa at consulate overseas (doesn’t guarantee admission at border, can be turned away)
 if citzn of certain countries (mostly Euro), can enter for business or tourist up to 90 days w/o visa
 if already admitted as non-immig you can change to diff non-immig status. INA §248

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• Additional Admission Options

• Adjustment of Status - INA §245

o Requires Form I-485
o aliens here as non-immigrants don’t have to leave and come back to be admitted as immig (LPR)
– you still have to fit in one of categories and be admissible and there has to be a spot open for you
 Alien here as other than immigration category can adjust to status of immigrant w/o leaving the
country
 Conditions for § 245 – fit into immigration category AND not inadmissible
o “advance parole” – permission to travel outside US while apps are pending – if you don’t get
permission then you are deemed to have abandoned the application
o “work authorization” allowed
 Process
• Examiner (instead of consular) must consider:
o (1) Fit into immig category
o (2) Inadmissiblity -- Alien is considered as if at the border seeking admission
• Discretion - Factors that may be considered:
o Family ties
o Hardship in traveling abroad
o Length of res in US
o Preconceived intent to remain
o Repeated violations of immigration discretion
o Requirements for Adjustment under INA §245(a)
 Alien MUST have been inspected AND admitted or paroled – EWIs DO NOT qualify
 Can’t adjust under (a) if ineligible under §245(c)
• Ineligible IF worked w/o authorization before filing, UNLESS immediate relative of US citizen §
245(c)
 EWI exception given in INA §245(i) [amnesty]
• Not eligible for applications filed after 4/30/2001
• Avoided problems caused by Unlawful Presence under INA §212(a)(9)(B)(i)
o If EWI in US illegally 180 days to 1 yr, leaving triggers 3yr bar on re-entry
o If in US longer than 1 yr, bar is 10 yrs
o Ineligible IF alien is in unlawful immigrant status on date of filing application (unless b/c of
reasons not alien’s fault)
o Ineligible IF violated terms of non-immigration visa
o Appealing an Adverse Decision – Denied Adj of Status
 NO administrative appeal
 May only renew adj app before the IJ conducting the removal proceedings (if they occur)
 §242(a)(1)(B) says ct’s don’t have auth to review decisions made under §245, BUT cts are
divided as to whether or not they do have jud rev auth
o Rescission of Adjustment – §246(a)

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 gov can take back the status alien gained thought adjustment w/in 5 yrs IF AG thinks that person
was not eligible for the adjustment to begin with
• Parole - INA §212(d): lets alien into country pending determination of admissibility, BUT alien
is treated statutorily and constitutionally as if still at border, in US by grace of gov – (used b/c costly to
detain)
o On case by case basis, where there is a significant public benefit
o Urgent humanitarian reasons
o NOT considered to be admitted
o Pre-1996: Could not be granted to EWIs b/c they were considered admitted / Cts could review
denial of parole for abuse of discretion
o Post-1996
 Available to EWIs
 AG has discretion
 No judicial review allowed
o Can be on parole for several yrs – BUT you cannot use this or ties you make during this time to
make your case more sympathetic - CT said parole was “never intended to affect an alien’s statuts”
o Refugees: Parole Pwr used by past presidents to bring groups in
 Can’t do this now b/c of INA §212(d)(5)(B)

• Grounds of Inadmissability
• Overview
o INA §212 Controls
o Consideration of eligibility
 1st – fit into admission category that allows alien to come to US as LPR
 2nd – make sure that there are not any reasons that would make alien ineligible
• eligibility is considered
o 1st at consular office in home country [auth from §212(a)]
o 2nd at border – CBC inspectors at port of entry can deny under §221(h)
o 3rd when alien applies for adj of status under 245(a)
• If US catches that there was a mistake, and alien was really inadmissible, then they can be sent
home under §237(a)(1)(A) p270 – this § provides that aliens inadmissible at time of entry or adj of stat
are deportable
o “Admission” defined in INA §101(a)(13) [alien in US after inspection and authorization]
 key to where you fall for removal proceedings
 INA §101(a)(13)(C) – says that LPR can leave US (if 180 days or less) and come back and won’t
be considered “seeking admission” – if alien comports w/101(a)(13)(C) then won’t be subject to
inadmissibility grounds
o EWIs are inadmissible, so can be removed. INA §212(a)(6)(A)(i)
 Before 1996, law made distinction between aliens at border and illegals - illegals considered to
have “entered” even though had not been admitted (Volpe) – everything turned on idea of being
“present” in the US
• Inadmissible aliens at border  exclusion proceedings (more cursory, fewer protections for
alien, little/no constitutional rights and judicial review-Knauff)

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• EWI was considered in the US  deportation proceedings(not anymore-legal fiction)
 1996 Amendments changed law  said illegal/EWI and alien at border are the same, neither
have been “admitted,” both are subject to “removal” proceedings
• Inadmissibility Grounds Under INA §212(a)
o Health-Related Grounds INA §212/a/1
 Admission barred for communicable disease that has public health significance
o Crime: INA §212/a/2
 Conviction of certain crimes
• Commit or admit elements of…
o CIMT
o Controlled substance violation
• Exceptions for single offense
o Crime committed before 18th bday, and committed 5 years before application OR
o Maximum penalty less than 1 yr, and sentenced to less than 6 months
 Multiple convictions (not including purely political offenses) with aggregate sentences of 5 yrs
or more
 Controlled substance traffickers
• Trafficker themselves
• Spouse, son, or daughter who knowingly derived benefits
 Prostitution and commercialized vice
 Serious Criminals who have asserted immunity from prosecution
• Serious crime defined in INA §101/h
 Waiver Authorized
 Foreign gov't officials who have committed violations of religious freedom
 Traffickers in persons
 Money Launderers
o Security & Related Grounds: INA §212(a)(3)
 General threats
 Terrorism
• Note expansive definition of "engage in terrorist activity" INA 212/a/3/B/iv
 Foreign Policy Reasons
 Membership in Totalitarian Party
 Nazi participant
o Public Charge Provision: INA §212(a)(4)
 3 ways to ensure aliens don’t cost system more than the benefit the system
• direct disqualifications – no benefits for 5 yrs (effectually 10 yrs w/ relation to deeming prov)
o aliens are not eligible for federally means-tested benefits for the first 5 yrs that they are here
(food stamps, SSI, Medicaid, welfare)
 not applied retroactively
• deeming provisions – assets of sponsor deemed to alien for 10 yrs
o if alien has been here for 6 yrs and goes to get fed benefits, then the gov attributes all the assets
and income of the sponsor

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• affidavits of support (INA §213A) – not admitted if you are going to become public charge at
any time
o family sponsored immig (and some empl-based immig) must have affidavits of support
o legally enforceable / not voided by divorce
o Sponsor has to show ability to support own household and any sponsored immigs at min of
125% poverty line for entire period of enforceability (~10 years) – can have numerous people join as
sponsors but you have to include all their families too
 INA §237(a)(5) - deportable if public charge in 5 yrs (per Matter of B-, no subject unless the
public agency requires repayment and actually demands reimbursement)
 Pre 1996 Amendments
• Primarily a case-by-case analysis. Matter of Kohama
 1996 Amendments  “deeming provisions” and legally enforceable affidavits of support
 Policy – how we see immig law, what is the purpose, affects how we see this provision. (req’mt
that immig have safety net; affliction – no benefits makes sense; immig as K – this is the deal; immig as
transition – should be immediately treated as part of society and then cut them off
o Labor Certification INA §212/a/5
o Illegal Entrants and Immigration Violators INA §212/a/6
 Present sans admission or parole
 Failure to attend removal proceeding
 Misrepresentation
 Stowaways
 Smugglers
 Subject of Civil Penalty
• Violators of INA §274C (expedited removal)
o Documentation Requirements INA §212/a/7
o (Permanently) Ineligible for Citizenship INA §212/a/8
o Aliens Previously Removed INA §212/a/9
 Aliens previously removed
 Aliens unlawfully present
 Unlawful presence after previous immigration violations
o Miscellaneous INA §212/a/10
• Waivers of Inadmissability
o commission of aggravated felony (defined in 101(a)(43)) can disqualify a person from an
inadmissibility waiver (permanent bar)
o often keyed to having a relative already in US (hardship based on effect to them)
o there’s no entitlement to waiver – all are discretionary – almost all uses “may” as the language
o 212/a/9/B/v: Unlawful presence waiver
o 212(d) Parole - waiver grounds for non-immigrant
 easier to get b/c we are not so worried about the red-flag people b/c they are not coming to stay
o 212(e) for certain educational visitors
o 212 (g) when health related problem – when DHS can waive health related ground
o 212 (h) waiver for crimes; can waive the following crimes:
 Crimes of “moral turpitude” except murder or torture
 Multiple criminal convictions
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 Prostitution
 Only one offense (whether you admitted to the act or were actually convicted) of simple
possession of 30 grams or less of marijuana (no other drug crimes can be waived)
 Diplomats who claimed “immunity” to keep from being prosecuted
o 212 (i) waiver for committing fraud
• 212 (k) waiver for labor (a/5/A) or documentation (a/7/A/i) problems
•

Removal & Relief

• REMOVAL
o Categories of Removability
 (1) Alien inadmissible under INA §212 (includes EWIs)
• INA §212(a)(6)(A)(i) removes noncitizens who enter w/o inspection
 (2) Alien deportable under INA §237 (applies after alien has been “admitted”)
• More procedural safeguards
o Differences
 Inadmissible – burden is on alien to prove admissible
• Some can get expedited removal. INA §235
 Deportable – burden is on gov't to prove deportable
• No expedited removal (those here have greater stake)
• Removal and Punishment (Fong Yue Ting, Wong Wing, Bugajewitz)
o Removal is not Punishment for Constitutional purposes
 Judicial proceeding not trial, no criminal violation committed, so no punishment can be imposed.
Fong Yue Ting
 Criminal law not implicated. Congress has unquestioned power to order deportation of aliens.
US not obligated to harbor unwanted persons. Bugajewitz (prostitution case)
 No limits can be imposed by the courts on the power of Congress to exclude or expel
undesireables. Wong Wing
• Mere illegal presence may not be criminalized by imposing criminal penalties like manual labor.
Wong Wing
o Dissenting Views
 Exceedingly harsh consequences.
• Fong Yue Ting Field Dissent
 Grant of LPR status confers protection of the Constitution.
• Fong Yue Ting Brewer, Field, Fuller Dissents
• Plasencia (only left for a few days and smuggled people back over the border)
o Consequence of viewing removal as punishment:
 Cost lots more resources
 get trial by jury, right to appointed counsel
 very diff scheme from we have now
 Constit protections for criminals would apply
• Ex post facto

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• Right to counsel
• Expedited Removal - INA §235(c)
o provides that alien can be removed w/o further hearing or review
o UNLESS he indicates either intention to apply for asylum or fear of persecution
 Detained and referred to asylum officer - Must have “credible fear” of persecution – definition in
INA §235(b)(1)(B)(v)
• If pass, then gets reg removal hearing and can be released on parole while case is pending
o If removed, inadmissible for 5 yrs
o Voluntary removal - at discretion of immig officers, the alien can withdraw application for
admission and just go home (so not inadmissible for 5 yrs) (3/4 of aliens in this situation do this)
o INA §235(c) – for terrorism - gov can use cursory proceeding and use secret evid and send alien
home
o INA §235(b) – incomplete or fraudulent documents
 allows rejection for having no or fraudulent docs, doc not in order – get sent home
o Triggers 5-yr bar. INA §212(a)(9)(A)
 But voluntary removal at official’s discretion (not up to the alien)
• The Consequences of Removal
o Bars to reentry - INA §212(a)(9): "without AG's permission"
 previously removed upon arrival  5 yr wait to apply for reentry
 previously removed  10 yrs
 removed more than once  20 yrs
 aggravated felon  may be barred for life

• DEPORTABILITY
• Deportable Aliens - INA §237(a)
o Inadmissible at time of entry or violated status
 Inadmissible at time of entry or adjustment. Go to INA §212.
 Present in violation of INA or any other US law.
 Violated nonimmigrant status or conditional entry
 Conditional spouses and investors that fail to convert
 Smuggling
 [repealed]
 Marriage fraud
 Waiver authorized
o Certain Criminal Offenses
 General Crimes
• CIMT w/in five years
• Multiple convictions
• Aggravated felony
• High-speed flight from immigration checkpoint
• Failure to register as sex offender
• Waiver authorized for clauses i -- iv (requires full pardon)
o Failure to Register or Falsified Documents

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 Includes expedited removal allowed for convictions of INA 274C
• Rarely used or enforced.
o Engaged in terrorism or threatened national security
o Public Charge
o Unlawfully voted

• Requirements for Deportability

o Alien has to be physically in the US
o Has to have been admitted. INA 101/a/13
 deportation grounds do not apply to EWIs – they are subject to removal proceedings b/c of
inadmissibility under INA §212(a)(6)
• Analysis of Most Common Deportability Grounds
o Inadmissible at time of entry or adj of status INA §237(a)(1)(A)
 Inadmissible at time of admission - Gov should have bared admission in the first place, and the
gov made a mistake in admitting
 “delayed exclusion”
 no statute of limitations attaches
o Present in violation of law INA §237(a)(1)(B)
 not used for EWIs b/c they fall under 212
 used for those who’ve overstayed
• overstayers generally inadmissible for 3 or 10 yrs after departure if they leave US and seek
return. INA §212(a)(9)(B)
o Violated non-immig status or conditions of admission. INA §237(a)(1)(C)
 Had student visa but came to work instead
 Covers non-immigs who work w/o authorization, students who leave school, and temp workers
who abandon the employment that was the basis for admission
o Criminal offenses. INA §237(a)(2)
 Convictions – defined in 101(a)(48)(A)
• Term “for which the term of imprisonment is at least ___” mean the time that the person was
convicted to, time sentenced (like in (F) or (G), but NOT in (J).
 CIMT: CIMT (crime involving moral turpitude)
• "An act of baseness, vileness. Or depravity in the private and social duties which a man owes to
his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty
btwn man and man” Black's Law Dictionary.
• Serious crimes against persons (murder, vol mansl, rape, aggravated assault, kidnapping) and
property (arson, burglary, embezzlement)
• Crimes with an element of intent to defraud (Goldeshtein)
• Evaluated with categorical approach. Inherent nature of offense is evaluated, not particular
conduct of noncitizen. Matter of R-
• “Q turns on whether evil intent – in this case intent to defraud – is an essential element of the
crime” - intent must be an element, BUT it can be “implicit in the nature of the crime” Goldeshtein v.
INS.
 Drug Offenses: INA §237(a)(2)(B)

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• very broad, covers all convictions (exception for small amount of marijuana), reaches drug abuse
and drug addicts
 Aggravated Felonies: INA §237(a)(2)(A)(iii)
• Defined INA §101(a)(43)
• Applies retroactively per 1996 Act (retroactive ok under Bugajewitz)
• Must have conviction, not just commission
• Consequences
o Not eligible for most forms of relief
 Asylum. INA §208/b/2/B/i
 Cancellation: INA §240A/a/3
 Voluntary departure. INA §240B/a/1, b/1/C
o Not entitled to ordinary form of jud rev of dep orders. INA §242/a/2/C
o Barred for life from re-entry w/o AG’s consent. INA §212/a/9/A/I
o Precludes finding of good moral character INA §101/f/8
o Non-LPRs are subject to administrative removal. INA §238/b
• A state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it
proscribes conduct punishable as a felony under that federal law. Lopez v. Gonzales
• Even if alien doesn’t know that pleading guilty will lead to dep, they still can’t withdrawal the
guilty plea
• Misdemeanors: st convictions for misdemeanors CAN be considered ag felonies under INA IF
the conduct fits into one of the categories as defined by Cong in 101(a)(43) – this is allowed b/c Cong is
the one defining what is meant by “ag fel,” not st laws (Guerrero-Perez)
o State felony will not be deemed an “aggravated felony” if the corresponding federal offense is a
misdemeanor. (Lopez).
• Categorical approach used for evaluating whether certain offenses are aggravated felonies:
elements and nature of conviction considered, rather than details regarding the individual's particular
offense. Leocal
• Relief From Removal Overview
o Discretionary Relief: Types
 Voluntary Departure: INA §240B
 Cancellation of Removal: INA §240A
 INA §212(c) Relief
 Adjustment of Status: INA §245
 Asylum: INA §208
 Stay of Removal: 8 C.F.R. §1003.8
 Parole: INA §212/d
 Registry: INA §249
o Requirements For Discretionary Relief
 (1) Statutory req’mts – alien must be statutorily eligible
• ask is alien eligible?
 (2) Gov discretion – alien must get some level of discretion
• does alien warrant favorable exercise of discretion?
• Discretion is by the IJ that are exercising the AG’s authority (not the auth of DHS as the term
AG would be in other parts of the Act)
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o Other Relief
 Restriction on Removal
 Temporary Protected Status
 Other
• Relief From Removal Analysis
o Voluntary Departure: INA §240B
 By ICE officials. INA §240B/a/1
 By IJ. INA §240B/a, b
 Bars to application
• Aggravated felony. INA §240B/a/1
• Terrorism: INA §240B/b/1/C
• Previously granted voluntary departure: INA §240B/c
 Deadlines
• Within 120 days if granted before or during removal proceedings. INA §240B/a/4
o Bond may be required. INA §240B/a/3
• Within 60 days if granted after removal proceedings. INA §240B/b/2
o Bond required. INA §240B/b/3
 Eligibility INA §240b/b/1
• Ability to pay, and not barred from application
• 1yr physical presence before NTA served
• 5yrs good moral character
• Not barred for terrorism or national security
• C&C evidence that alien has means to depart and intends to depart
 No Judicial Review: INA §§240B/f, 242/a/2/B/I
o Cancellation of removal: INA §240A
 May only be granted once. INA §240A/c/6
 Applies to inadmissible EWIs AND deportable LPRs
 Judicial Review Limited – no jud rev for discretionary denial - INA §242(a)(2)(B)
 Caps: max allowed is 4,000 people per yr per 240A(e)
• ONLY applies to non-LPRs – there’s no limit on granting cancellation of removal for LPRs
• NACARA allowed Salvadorans and Guatemalans to have can of rem that did not count toward
this 4,000
 “Stop Time Rule”: INA §240A(d)(1) -
• Actually pretty narrow. Only covers CIMT, drug offense, multiple convictions.
• Time in US stops running when...
o notice is served OR
o when a crime "referred to in INA §212/a/2" is committed that makes alien...
 inadmissible for CIMT, drug offense, or multiple convictions INA §212(a)(2); OR
 deportable/removable for a criminal offense INA 237(a)(2), or national security grounds (4),
whichever is earliest.
 LPR: INA §240A(a)
• must be LPR for 5 yrs or more
• continuous residence in US 7 yrs or more. [See Removal Issues section]

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• no agg fel convictions
• ALSO – favorable discretion. Positive and negative factors. Gonzalez
 Non-LPR: INA §240A(b)
• continuous physically present for continuous 10 yrs or more - “physically present” in US for
“continuous period of not less than 10 yrs immediately preceding the date of such application”
o continuous phy presence is broken if absent 90 consecutive days or total of 180. INA §240A/d/2
• good moral character: INA §101(f) defines what is not good moral character
• not convicted of offense under §212/a/2, §237/a/2, §237/a/3, AND
• Exceptional and extremely unusual hardship to alien’s spouse, parent, or child
o “Must be a hardship beyond that which would ordinarily be expected to result form the person’s
departure.” Recinas quoting Monreal
o Factors to consider: Recinas quoting Monreal
 Age / health / circumstances of family members / lower stand of living or adverse country
conditions

Page 22 of 32
• Removal Procedures
• REMOVAL PROCEEDINGS
o 2 dimensions
 (1) what statute says - INA §240
 (2) what DP demands as a minimum (Constitutional)
o Notice to Appear (NTA). INA §239
 Hearing not sooner than 10 days / No right to remain silent, but can get atty.
o Arrest
 With warrant INA §236(a)
 Without a warrant. INA §287(a)
• Officer must believe illegal entry or attempt is underway
• Present in violation of immigration laws and likely to escape before arrest warrant can be issued
 If arrested, hearing must be w/in 48 hrs. 8 C.F.R. §287.3/d
 PATRIOT Act allows DHS to hold up to 7 days w/o filing NTA or crim charges IF thinks person
is terrorist. INA §236A/a/3, 5
o Sts and localities have auth to enforce fed immig laws- Fed gov can “deputize” locals – share
cost/get fed training. INA §287/g
o Right To Hearing Before Immigration Judge. INA §240/a/1
• Conduct of Proceeding INA §240(b)
o (1) IJ is not just adjudicative – also can interrogate, subpoena witnesses, etc – more active roll
o (2) proceedings happen in person, w/o alien present, or video conference
o (4) alien’s rights:
 right to be represented but not to have rep that’s provided by gov
 right to examine evid against, have witnesses, etc
• does not have right to review classified evid that gov is using
 complete record is kept of proceeding
• Appeal
o Appeals of removal orders from IJ are appealed to BIA
o All other repeals either go to BIA or AAU. 8 CFR §§1003.1/b, 103.3
• Prison Sentences for Convictions and Removal
o INA req’s gov to remove only after alien has served jail sentence. INA §
 Why? – deterrence / b/c we do want retribution / removal is not pun / so easy to come back
illegally
 Other side – why should we pay to keep aliens in prison? It’s very expensive

• Detention: Indefinite Detention / Detention Pending Removal Hearing

o Policy Arguments For Detention
 obviously restrains personal liberty
 w/o it, immig laws are diff or impossible to enforce
 used to crack down on certain violators or to restore credibility to system
o 4 levels of priority: 75 Interp.Rel. 1508
 (1) required (w/ limited exceptions)

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 (2) high – includes aliens who are: removable on sec/related grnds / crim aliens / a danger to
community or flight risk / engaged in alien smuggling / whose detention is essential for border
enforcement
 (3) medium
 (4) lower
o 4 scenarios
 Arriving aliens – inadmissible aliens, if not in expedited procedings, “shall be detained.” INA
§235(b)(2)
• Parole may be granted in some cases (medical conditions; pregnancy; certain juveniles; gov
witnesses; those “whose continued detention is not in the public interest”) 8 C.F.R. §212.5
• district directors make the decision regarding release and the conditions (like bond)
• IJs cannot rev bond decisions regarding arriving aliens. 8 C.F.R. §236.1/11
o Nor returning permanent residents. 8 C.F.R. §1003.19/h/2/i/B
• Gov has discretion to adjust these criteria in special circumstances.
• Inadmissible persons detained under §241/b/6 are also subject to 6 month reasonable period
limitation in Zadvydas. Clark v. Martinez
 Pending determination of deportability. “May be detained.” INA §236(a)
• Suspected terrorist aliens must be detained. INA §236A
o Zadvydas/Clark reasonable period codified in (a)(6)
• Criminal aliens must be detained. INA §236(c)
• Can be detained OR released on bond or own recog
• Dist director makes initial decision and alien can ask IJ for release, change in conditions, or bond
amt
• Factors considered
o Emplmt; length of residence; family ties; record of appearance at court; prev criminal or immig
law violations
• Both non-cits and DHS can appeal to BIA
• Post 911 – harder for single IJ to release non-cit
 Final removal order has been issued - mandatory detention. INA §241(a)(2)
• removal must be w/in 90 days – “shall” detain person during this time
o after 90 days, AG has discretion to release
• constit rule here – also constitutional b/c can be answered by Demore v. Kim, even though
there’s no case just for this
 Removal not possible b/c no place for the alien to go - may be detained beyond removal period.
INA §241(a)(6).
• Zadvydas – CT interjects into the statute that it says that aliens may be detained for a reasonable
period (6 months) beyond the removal period
o CT does not decide this with regards to those who are national security threats
• Ct reads stat to permit detention indefinitely until “it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future” – whenever that may be
• The Zadvydas restriction to 241/a/6 [can only hold as long as there’s significant likelihood of
removal] applies to the entire paragraph b/c the CT has said that the “may” language applies to all
categories in the paragraph (Martinez)
• Aggravated Felony
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• Definition INA §101/a/43
o Attempt to commit anything in this list §101/a/43/U
o Bribery w/ imprisonment term at least 1yr §101/a/43/R
o Bribery of a witness w/ imprisonment term at least 1yr §101/a/43/S
o Child pornography §101/a/43/I
o Conspiracy to commit anything in this list §101/a/43/U
o Counterfeiting w/ imprisonment term at least 1yr §101/a/43/R
o Crime of violence w/ imprisonment term at least 1yr §101/a/43/F
o Dealing stolen goods in excess of $10,000 §101/a/43/D
o Document fraud w/ imprisonment term at least 1yr (family-based exception for first-time
offenders) §101/a/43/P
o Explosive materials offense §101/a/43/E/i
o Failure to appear in court for felony charge for which sentence of 2 years or more may be
imposed §101/a/43/T
o Failure to appear for service of sentence if underlying offense is punishable by term of
imprisonment at least 5yrs §101/a/43/Q
o Firearms offenses §101/a/43/E/ii,iii
o Forgery w/ imprisonment term at least 1yr §101/a/43/R
o Fraud or deceit involving >$10,000 loss to victim §101/a/43/M/i
o Gambling offense w/ imprisonment term at least 1yr §101/a/43/J
o Improper entry (INA §275/a) after prior removal for aggravated felony §101/a/43/O
o Money laundering in excessof $10,000 §101/a/43/D
o Murder §101/a/43/A
o Obstruction of justice w/ imprisonment term at least 1yr §101/a/43/S
o Passport fraud or tampering with government instrument, w/ imprisonment term at least 1yr
(family-based exception for first-time offenders) §101/a/43/P
o Perjury or subornation of perjury w/ imprisonment term at least 1yr §101/a/43/S
o Pimping §101/a/43/K/i
o Racketeering offense w/ imprisonment at least 1yr §101/a/43/J
o Ransom, demand for or receipt of §101/a/43/H
o Rape §101/a/43/A
o Re-entry after prior removal for aggravated felony §101/a/43/O
o Revealing identity of undercover agents §101/a/43/L/ii,iii
o Sabotage §101/a/43/L/i
o Sexual abuse of minor §101/a/43/A
o Slavery, peonage, involuntary servitude §101/a/43/K/iii
o Smuggling aliens (exception for family members) §101/a/43/N
o Tax evasion over $10,000 §101/a/43/M/ii
o Theft, receipt of stolen property, or burglary w/imprisonment term at least 1yr §101/a/43/G
o Trafficking in controlled substance §101/a/43/B
o Trafficking in firearms, explosives, or destructive devices §101/a/43/C
o Trafficking in persons §101/a/43/K/iii
o Trafficking in prostitutes §101/a/43/K/ii
o Trafficking in vehicles with altered VIN numbers w/ imprisonment term at least 1yr §101/a/43/R
Page 25 of 32
o Treason, or disclosing state secrets or classified info §101/a/43/L/i
• Issues
o Applies retroactively per 1996 Act (retroactive ok under Bugajewitz)
o Must have convbiction, not just commission
o A state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it
proscribes conduct punishable as a felony under that federal law. Lopez v. Gonzales
o Even if alien doesn’t know that pleading guilty will lead to dep, they still can’t withdrawal the
guilty plea
o Misdemeanors: st convictions for misdemeanors CAN be considered ag felonies under INA IF
the conduct fits into one of the categories as defined by Cong in 101(a)(43) – this is allowed b/c Cong is
the one defining what is meant by “ag fel,” not st laws
o Categorical approach used for evaluating whether certain offenses are aggravated felonies:
elements and nature of conviction considered, rather than details regarding the individual's particular
offense. Leocal
o Term of imprisonment analysis: time of incarceration ordered by the court. INA §101/a/48/B

• Consequences
o Not eligible for most forms of relief
 Asylum. INA §208/b/2/B/i
 Cancellation: INA §240A/a/3
 Voluntary departure. INA §240B/a/1, b/1/C
o Not entitled to ordinary form of jud rev of dep orders. INA §242/a/2/C
o Barred for life from re-entry w/o AG’s consent. INA §212/a/9/A/I
 Illegal re-entry carries prison sentence of 20 years, and is considered another aggravated felony.
INA §276/b, §101/a/43/O
o Precludes finding of good moral character INA §101/f/8
o Non-LPRs are subject to administrative removal. INA §238/b

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• Morals
• CIMT
o Definitions
 "An act of baseness, vileness, or depravity in the private and social duties which a man owes to
his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty
btwn man and man” Black's Law Dictionary.
 Crimes with an element of intent to defraud (Goldeshtein)
 Evaluated with categorical approach. Inherent nature of offense is evaluated, not particular
conduct of noncitizen. Matter of R-
 “Q turns on whether evil intent – in this case intent to defraud – is an essential element of the
crime” - intent must be an element, BUT it can be “implicit in the nature of the crime” Goldeshtein v.
INS.
o Possible CIMTs [depends on intent requirement of committing offense]
 Aggravated DUI
 Crimes of violence
 Fraud
 Kidnapping
 Murder
 Rape
 Robbery
 Spousal abuse
 Theft
 Voluntary Manslaughter
• Good Moral Character
o Required for naturalization. INA §316/a
o Acts that PRECLUDE a finding of good moral character. INA §101/f
 Within 5 years of application…(conviction not required)
• CIMT [§212a/2/A] §101/f/3
• Confinement totaling 180 days or more, regardless of when triggering offense was committed
§101/f/7
• Controlled substance [§212/a/2/A] §101/f/3
• False testimony to get benefit under INA §101/f/6
o Narrow exception for some false claims made in good faith. §101/f
• Gambling, income principally derived from §101/f/4
• Gambling, multiple offenses §101/f/5
• Habitual drunkard. §101/f/1
• Multiple convictions [§212/a/2/B] §101/f/3
• Polygamy [§212/a/10/A] §101/f/3
• Prostitution [§212/a/2/D] §101/f/3
• Smuggler of aliens [§212/a/6/E] §101/f/3
• Trafficker in drugs [§212/a/2/C] §101/f/3
 At any time…
• Aggravated felony conviction §101/f/8

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• Extrajudicial killing [§212/a/3/E] §101/f/9
• Genocide participant [§212/a/3/E] §101/f/9
• Nazi participant [§212/a/3/E] §101/f/9
• Religious freedom violator [§212/a/2/G] §101/f/9
• Torture participant [§212/a/3/E] §101/f/9

• Judicial Review
• Jurisdiction
• Noncitizen may appeal a removal order to federal court of appeals. INA §242
o Removal for most crime-related grounds not appealable, except single CIMT. INA §242/a/2/C.
 Pure questions of law will still be reviewed. INS v. St. Cyr
o Discretionary decisions not reviewable in federal court either.
o No review of decisions statutory placed in discretion of AG. INA §242/a/2/B.
 Except for asylum grants.
• Admission Procedures (Knauff, Mezei, Chew, Plasencia, Fiallo)
• Due Process Framework
o Can the alien raise a proc DP claim?
 Have proc DP rights?
• If no, very cursory DP. Knauff
 Will the ct review such a claim?
• If YES, what process is due?
• FACTORS that affect whether the court will find that an alien CAN raise DP claims
o Location
 Pure location rationale in Volpe
 Brewer dissent Fong Yue Ting
o Stake
 Fuller dissent Fong Yue Ting
o Length of absence. Mezei, Chew, Plasencia
o Status (1st time entrant or LPR)
 Entrant: Knauff, Mezei
 LPR: Plasencia
o Reasons for leaving if admission is at re-entry
o National security concerns – where alien goes / what alien does
 Mezei, Knauff, Chew
o Statutory scheme
o Reliance on the government (Chew relied on gov who said he could get on the ship and get back)
o Where you enter - EWI
o Is alien facing detention
• Here / There Dichotomy (involves Location and Stake)
o Here  procedural challenges [much more likely to win]
 LPRs
 Plesencia – treated as LPR in US who brought proc DP challenge

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 Here aliens raising the substantive challenges is much harder
o There  substantive challenges [less likely to win]
 Diversity lottery (no connection to US)
 Tourist planning trip to US
 Fiallo –raising a substantive challenge to immig laws – they lost
 There alien raising procedural challenge – less clear what ct is going to do, much more difficult
o HARD issues – we don’t know what the CT will do
 There alien raising procedural challenge
 Here aliens raising the substantive challenges
 What’s the overlay of national security? – would affect both.
• Re-Entry Issues
o Court distinguishes btwn a few hours, days or 19-20 mos.Mezei, Plasencia. Where's the line?
 INA §101(a)13(C)(ii): LPR gone “in excess of 180 days” is considered to be seeking admission
(can also be considered seeking admission if they had committed a crime)
 Temporal gray area - LPRs only protected if they fit in INA §101(a)(13)(C)
• If you can’t take advantage of 6 mo exception, then it’s not clear how long you can be gone and
still raise constit DP claims – at what point do you lose your rights to raise DP claims? 8 mo, 20 mo?
Longer? After 6mo window are you automatically in Mezei land?
 Gray area about context
• Involvement of nat sec issues (not in Plasencia but did in Mezei)
o Arguably the dispositive difference in the two
o Pre-INA § 101(a)(13) - What counts as “absence is extended?”
 The Fleuti exception (modified in 1996) – Non-citizen not considered entering if temp absence
was not “meaningfully interruptive” of perm residence (Fleuti, CT 1963)
• National security issues
o Present in Mezei, not in Plasencia
 Arguably the dispositive difference between the two
o INA §235(c) – allows AG to order removal of arriving alien on most of the nat sec
inadmissibility grounds w/o further hearing IF AG acts on basis of “confidential information,” the
disclosure of which “would be prejudicial to the public interest, safety, or security”
o Left unadressed in Zadvydas
• Modern Supreme Court model of DP analysis in civil cases
o Ct moved away from only seeing proc DP as only for protecting traditional forms of prop and
instead saw it more broadly to include statutory “entitlements” (like welfare)
o 2 step process
 Does the claimant possess a “liberty” or “property” interest under the 5A DPC?
 What procedural protections does DP require?
o Idea of what “liberty” and “property” mean is expanded, “must be broad”
o Modern cases stress flexibility of DP
 3 part bal test (Mathews v. Eldridge balancing test)
• (1) interests at stake for individual
• (2) interest of the gov in using the existing procedures
• (3) the gain to accurate decision-making that can be expected form the procedural protection
sought
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• Draconian View: Knauff-Mezei Doctrine
o 1st time entrant cannot claim rights to PDP even if they have ties to the US.
o Congress holds unquestioned authority to prescribe process for arriving aliens, and whatever
Congress prescribes is adequate PDP concerning arriving aliens. Knauff
 This power may be delegated to the Executive branch. Knauff
o Judicial restraint, PPD, and Political Question Doctrine prohibit judicial review of admission
policy. Knauff
o Returning immigrants may be excluded for national security reasons and detained indefinitely if
no other country will take them. Mezei
• Moderately Flexible View: Chew, Plasencia, Zadvydas
o US cannot hold LPR w/o notice of charges or opportunity to be heard in court. LPR's have 5thA
DP rights. Chew, Yamataya, Plasencia
o LPRs get PDP, might get some SDP. Involves Matthews v. Eldridge test. Plasencia
o Arriving aliens still have no DP rights. Plasencia
o Henry Hart: the intellectually defensible view would be to declare that aliens have a right to
PDP, but that the procedures suffiecient to satisfy the right had been satisfied in Knauff-Mezei
• Detention (Demore, Zadvydas, Clark)
o The language of INA §241(a)(6) about AG “may” detain, applies to all the categories of aliens
mentioned in that paragraph. Clark v. Martinez
o Detention pending removal proceedings under INA §236/c is constitutional. Demore v. Kim.
• Employment-Based Immigration (Info Ind., Tuskegee U., Hathaway)
o Information Industries
o Tuskegee University
o Hathaway Children's Services
• Marriage - Based Immigration (Howerton, Bark, Dabaghian)
o Marriage must 1) be valid under state law, and 2) must qualify under INA. Adams v. Howerton
o Aliens cannot be expected to have more marital success than citizens. Focus of review is on
intent at marriage's inception. Bark v. INS 9th Cir.
o For adjustment of status, marriage that was genuine at inception satisfies eligibility requirement
for INA §245. Consider legal status of marriage at time of application. Dabaghian v. Civiletti 9th Cir.
• Constit limits on deportability
o US has auth to deport and remove (Fong Yue Ting)
o Removal is not punishment (Fong Yue Ting) said gov has auth to deport, distinguished deporting
from punishing
 Wong Wing: 1 yr hard labor then deport is punishment and alien must get all the DP of crim
proceedings
o Removal does not get protections of a criminal prosecution (b/c not punishment)
o Aliens in country do have DP rights to be heard, but it’s up to the Exec to decide what those
rights are to be - Aliens can’t just take alien into custody and deport w/o procedure (Yamataya)
o Non-citizens are protected by the Bill of Rights in cases not involving direct challenges to
deportability grounds
 Can Cong make alien deportable for action that the Const protects, like free speech?
• Laws that say yes would chill alien’s speech
• Bottom line is we don’t know the answer to this

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• Older cases say remv’l would be OK, BUT these are pre-Brandenberg (now 1A covers more)
o Those older case said either
 …that the it was actually that the speech in the case was not protected by the 1st Amend, OR
 …that gov can deport people for engaging in first amend. speech (broad view)
o Constitutional norms don’t apply to deportability grounds (Harisiades v. Shaughnessy, CT 1952)
o Ex post facto provision does not apply to removal (extra constitutional auth, immig is civil)
(Bugajewitz)
 Alien can be deported for conduct that, at the time the act was committed, did not make alien
deportable
• Bugajewitz,, CT 1913 – Justice Holmes - W is prostitute now and gov says she was prostitute
when she entered and that was her purpose in entering, she denies that she was and calims her intentions
were legal - Old law just said that you could be ousted if prostitute w/in past 3 yrs, but then Cong
changed to within 5 yrs
o Cong has pwr to deport aliens it doesn’t want b/c presence is deemed hurtful to county
o Deportation/removal is NOT a punishment as far as the Constit is concerned – it’s just refusal of
gov to harbor those unwanted
o Therefore, Ex post facto provision does not apply to deportability grounds
• Mahler v. Eby, CT 1924 – upheld deportability of someone under retroactively applied statute -
CT said the gov was merely getting rid of an undesirable resident
• Galvan v. Press, CT 1954 –Mexican born and was member of communist party at time when that
was OK, but in 50s he was being deported for being member
o CT held that gov could deport him b/c he was communist party member, even though he was a
member at time when it was lawful
o DISSENT – thought it unfair, he had no way of knowing that his conduct then would become
illegal
• Holtzman Amendment – makes former Nazis deportable
 CT still scrutinizes legislation that imposes new duties under the DP clause
 Issues: Unfair to impose sanctions when the conduct was lawful when it was committed?
• Justness in deporting someone who made a mistake yrs ago but has since lived lawful life?
o BUT, DP clause still applies to the laws (even the retro-active laws) – so aliens can still raise DP
claim (alien will probably loose but it’s still a valid claim)
o Rule of lenity – ct interpret grounds for deportability narrowly.
• Removal Proceedings
o Lack of full & fair hearing will not alone estab DP violation - also must be prejudice suffered by
party (Jacinto)
o IJs are obligated to fully develop the record when applicants appear w/o counsel (Jacinto)
o No right to paid counsel (Aguilera-Enriquiez, 6th)
 no right under the 6thA, but might be under the 5th’s DPC
o Violations of DP
 Inadequate understanding and communication that results in prejudice (Jacinto)
 Incompetent translation where there is prejudice. Amadou v. INS 6th Cir.

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