Immigration Law and Procedure in a Nutshell

by Weissbrodt, David S.

• ISBN13: 9780314154163
• ISBN10: 0314154167
• Edition: 5th
• Format: Paperback
• Copyright: 2005-01-01
• Publisher: West Group

Summary

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.

Table of Contents

Preface	iii
Explanatory Notes	vii
Table of Cases	xxix
Table of Other Authorities	xlvii
History of U.S. Immigration Law and Policy	1	(52)
Colonial Immigration	1	(2)
Early U.S. Immigration Policy	3	(3)
Restriction Begins: Excluding the Unwanted	6	(4)
The Quota Laws	10	(5)
The 1952 Act and Later Amendments	15	(6)
The 1986 Immigration Reform and Control Act (IRCA)	21	(7)
Amnesty for Undocumented Non-Citizens	24	(3)
Visa Lottery Programs	27	(1)
The Immigration Act of 1990	28	(12)
Overall Increase in Worldwide Immigration	29	(1)
Family-Sponsored Immigration	30	(1)
Employment-Related Immigration	30	(3)
Diversity Visas	33	(1)
Inhabitants of Hong Kong	33	(1)
Refugees and Temporary Protected Status	34	(1)
Nonimmigrant Provisions	34	(1)
Naturalization	35	(1)
Grounds for Exclusion	36	(1)
Health-Related Exclusion	36	(1)
Crime-Related Exclusion	37	(1)
Security as a Ground of Exclusion	37	(1)
Communists	37	(1)
Exclusion for Misrepresentation	38	(1)
Grounds for Deportation	38	(1)
Marriage Fraud	38	(1)
National Security Concerns	39	(1)
Further Reform	39	(1)
The Violent Crime Control and Law Enforcement Act of 1994	40	(1)
The Acts of 1996 (AEDPA and IIRIRA)	40	(5)
Major Provisions of the 1996 Acts	41	(2)
Judicial Response to the 1996 Acts	43	(1)
Immigration Legislation, 1996-2002	44	(1)
Immigration Law as a Consequence of September 11, 2001	45	(4)
Department of Homeland Security	46	(1)
Restrictions on Immigration	47	(1)
Monitoring of Non-Citizens in the U.S.	47	(1)
Investigations and Detentions	48	(1)
Moral and Policy Issues of Immigration	49	(4)
The Source and Scope of the Federal Power to Regulate Immigration and Naturalization	53	(30)
The Source of the Federal Power	53	(7)
The Commerce Clause	54	(1)
Other Constitutional Provisions	55	(1)
National Sovereignty	56	(1)
Delegated Versus Inherent Power	57	(3)
The Scope of the Federal Power	60	(10)
Plenary Congressional Power	60	(5)
Permissible and Impermissible State Regulations	65	(5)
The Functions of the Three Branches of the Federal Government in Regulating Immigration	70	(13)
The Legislature	70	(2)
The Judiciary	72	(1)
Decisions Relating to Exclusion (Now ``Inadmissibility'')	72	(2)
Resident Alien Cases	74	(4)
Naturalization Cases	78	(1)
Asylum Cases	79	(1)
The Executive	80	(3)
Administrative Structure of Immigration Law	83	(14)
The Department of Homeland Security	83	(4)
The U.S. Citizenship and Immigration Services	84	(1)
The U.S. Immigration and Customs Enforcement	85	(1)
The U.S. Customs and Border Protection	86	(1)
Asylum Adjudication	86	(1)
The Department of State	87	(3)
The Department of Justice	90	(4)
The Immigration Courts	91	(1)
The Board of Immigration Appeals	92	(1)
Other Units	93	(1)
The Department of Labor	94	(2)
The Department of Health and Human Services	96	(1)
The Congressional Role in the Immigration Process	97	(15)
Introduction	97	(1)
Legislation	98	(1)
Private Legislation	99	(5)
The Theory	99	(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