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September 5 - December 10, 2019
immigration law addresses three questions: which foreign nationals are permitted to enter the United States; who is allowed to stay, and for how long; and who must leave.
The United States began as a nation with open borders and no controls, and progressed to what exists now, a highly regulated system that endeavors to manage the inflow of people within its borders.
lawful permanent resident, abbreviated as LPR, refers to a foreign national who has immigrated here; that is, the person intends and is authorized to reside permanently and indefinitely in the United States.
Those who enter the United States as refugees receive their status while outside the country; individuals already physically present in the United States who seek protection apply for asylum and, if granted, are known as asylees.
Granted by an official from the DHS, it is based on an assessment of an emergency, humanitarian concern, or because it is in the public interest. A foreign national granted this status is known as a parolee.
Those who enter the United States without permission are referred to as having Entered Without Inspection, or EWI.
The Naturalization Act of 1790 established procedures for free white persons to achieve citizenship after just two years of residency, which later became five.
These Acts were the beginning of federal controls imposed on immigration. Domestically, they also restricted the ability to criticize the U.S. government, either in print or in speech, by making it a crime to utter statements that were “false, scandalous, or malicious.”
Designed to protect the newly freed slave, this Amendment declared that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” were full United States citizens.
the due process clause, means that even noncitizens have certain protections under the Constitution. The scope of these protections, particularly for those who lack immigration status, is often a source of federal litigation.
Through the cases challenging the legitimacy of the laws excluding the Chinese, the doctrine that Congress has the primary power to regulate immigration was established.
federal regulation of immigration was also strengthened through the Immigration Act of 1891, which gave the federal government direct control of inspecting, admitting, excluding, and processing all immigrants who sought entry to the United States.
Between 1903 and 1907, the category of immigrants excluded from entering the United States was enlarged to include anarchists, polygamists, epileptics, beggars, individuals with physical or mental defects, those infected with tuberculosis, and children unaccompanied by parents.
Known as the Literacy Act, the law required that all individuals, sixteen and older, have the ability to read thirty to forty words in their own language, thereby preventing the immigration of illiterate individuals. Interestingly, it did not require the ability to read in English.
However, the war caused labor shortages in the agricultural sector, prompting President Roosevelt to negotiate a series of bilateral agreements with Mexico to enable Mexican farm workers to enter the United States as temporary workers.
The Act tightened screening of applicants and security provisions, especially in relation to those from countries the United States fought against in World War II and those associated with Communism.
The Act’s primary purpose of reuniting families became the driving force for increasing ethnic diversity as more non-European groups left their home countries to resettle in the United States. This created a process referred to by some as “chain migration.”
Engaging in marriage fraud became a ground of deportation for the first time in this statute and also a crime for which either party could be criminally charged.
The Welfare Reform Act, among other things, denied most means-tested federal public benefits to legal immigrants for a period of five years after entry, and in some cases until a person naturalizes.
While the proper technical term for deportation is removal, many immigration practitioners still use the old language.
In order to encourage immigrants to cooperate with law enforcement and to escape both sexual and labor trafficking, the Victims of Trafficking and Violence Protection Act of 2000, or VTVPA,30 created new immigration benefits for victims of certain enumerated crimes.
the legislative branch, through Congress, has major authority in determining immigration policy.
DHS implements immigration laws.
ICE is divided into two sections: Enforcement and Removal Operations, or ERO, which is responsible for detaining and removing those who have violated U.S. immigration laws; and Homeland Security Investigations, or HSI, which is responsible for investigating cross-border criminal activity.
With changes in USCIS processing procedures, it is less likely that a foreign national will receive this stamp, since it now only takes a few weeks for him or her to receive the Permanent Resident card.
Practitioners must confirm with the relevant agency if it accepts only paper, electronic, or both types of forms.
One method that may be used in order to obtain documents that the foreign national no longer has in his or her possession is to request a copy of the person’s immigration file from the USCIS using a Freedom of Information Act request, known as a FOIA. This is done on a form issued by the USCIS called a Form G-639, Freedom of Information Act/Privacy Act Request, accompanied by a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, which will inform the government where the documents should be sent once retrieved.
there are five different groups of people in the United States at any one time: U.S. citizens; lawful permanent residents, or LPRs; nonimmigrants; refugees/asylees; and the undocumented.
While citizens are fully protected and therefore can never be asked to leave the United States, unless they lose their status as citizens first,4 this does not apply to any of the other groups.
Significant changes to the law relating to inadmissibility and deportation were introduced by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,5 or IIRAIRA.
Introduced by Bill Clinton. Fun fact: Hillary vowed to remove it while campaigning in 2016, saying she would remove a bill her husband brought into law. Ironic.
entry of a person to the United States is now referred to as admission, while deportation is now removal.
Admission deals with those who are considered to be at the border, literally and figuratively, asking to be granted permission to enter the United States or to remain in a temporary or indefinite status.
Deportation or removal refers to those who may have violated a condition of their stay or entered illegally and a decision must now be made as to whether they should remain here or leave.
The terms “admitted” and “admission” are defined as “the lawful entry of the [foreign national] into the United States, after inspection and authorization by an immigration officer.”
For many, the first opportunity to seek admission to the United States will be when an application is made at an embassy or consular office in the home country for a visa to enter, since having this document is often a prerequisite to even getting on a plane to travel here.
A decision to deny issuance of a visa and therefore admission to the country is not subject to review, i.e., there is no formal process to appeal a consular officer’s decision not to grant a visa.
admitted. If permission to enter is given, then a decision will also be made as to how long the person can stay.
Another opportunity to seek admission to the United States is when a foreign national applies for adjustment of status with the United States Citizenship and Immigration Service, or USCIS, under the Immigration and Nationality Act, or INA, §245(a).
Finally, a foreign national may seek admission to the United States in proceedings before an immigration judge who will decide whether or not s/he can remain in the country. Typically, this will apply to someone who has never been a permanent resident before.
decide. In some circumstances, a CBP officer can remove a person without a judge hearing the case. This is known as expedited removal,
In some circumstances, a CBP officer can remove a person without a judge hearing the case. This is known as expedited removal,
There's very little, if any, way to get around the incredible discretion given to the CBP officers. What sort of training do they have? Why do we allow this to be the case, unlike the rest of the law which has several layers and opportunities for review?
The health-related grounds generally encompass communicable diseases or mental health disorders that may create a danger to the general public. INA §212(a)(1) states that any foreign national who has any of the following health issues is inadmissible: ■ A communicable disease of public health significance, as determined by the Secretary of Health and Human Services, or HHS. Such diseases include leprosy or active tuberculosis. The type of communicable diseases that can render a foreign national inadmissible may change over time.10 For example, HIV infection had been included until 2008, when
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disorder, there must be evidence that behaviors that may pose or have posed a threat to the property, safety, or welfare of the applicant or others have been demonstrated, or that any such past behavior is likely to recur or lead to other harmful behavior.
■ Is Eddie inadmissible?
No, he's admissible. He doesn't pose a threat, since he has the appropriate medication to help him effectively manage his mental health problem.
Waivers of inadmissibility are available for most health-related grounds of inadmissibility. For those with communicable diseases, INA §212(g)(1) permits those who are otherwise inadmissible to enter if they: ■ Are the spouse, unmarried son or daughter, or minor unmarried lawfully adopted child of a United States citizen, LPR, or foreign national issued an immigrant visa; ■ Have a son or daughter who is a United States citizen, LPR, or foreign national issued an immigrant visa; or ■ Are a VAWA self-petitioner and meet whatever terms and conditions are imposed by the Attorney General, after
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Determining whether a foreign national is inadmissible as a result of criminal activity is extremely complex.
In criminal cases, considering the immigration consequences of a possible conviction or sentence imposed is now part of effective representation.
The Supreme Court decision in Padilla v. Kentucky, 559 U.S. 356 (2010), held that defense counsel must advise on the risk of deportation arising from a particular plea in criminal proceedings.
Where it is suspected a foreign national was not provided with the appropriate legal warnings by the attorney representing him or her in the criminal case, an ineffective assistance of counsel...
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Claiming ineffective assistance of counsel may allow the foreign national to challenge the propriety of the conviction itself and, if successful, allow greater access to immigration options.
