A brief overview of U.S. immigration law

The following material comes from a draft chapter of a book I am preparing for the American Bar Association. Immigration Law for the Family Practitioner will help family law attorneys understand how immigration law may impact their cases and clients. I am publishing draft versions of the chapters from the book on this blog. If you have thoughts about how I can improve the chapter to better answer your questions, please leave feedback in the comments below.

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1. Sources of law

Merely identifying the sources of immigration law is no small task. Unlike subject matter areas of state law governed by formal court tribunals, many critical immigration decisions are made by non-attorney adjudicators.^[1] These adjudicators, in turn, look to a maze of guidance from federal statutes to informally promulgated agency-level guidance.

U.S. immigration law is governed by the Immigration and Nationality Act (INA), codified at Title 8 United States Code. The INA, in turn, is interpreted by formal regulations set forth at Title 8 Code of Federal Regulations. The Act and regulations are interpreted by a substantial corpus of federal case law from Article III courts. The statute, formal regulations and Article III case law, however makes up just the tip of the iceberg. Decisional law is also provided by appellate bodies within some immigration agencies.^[2]

Immigration agencies have promulgated detailed guidance, far beyond the scope of their formal regulations. In practice these agency-level manuals often provide dispositive guidance on immigration issues. The sprawling Foreign Affairs Manual governs the State Department, including adjudication of visas at U.S. consulates abroad.^[3] The Adjudicator’s Field Manual is a less comprehensive counterpart for U.S. Citizenship and Immigration Services.^[4]

In addition, immigration agencies periodically issue internal guidance memoranda which, for practical purposes, have force of law. These internal memoranda are indexed by neither the immigration agencies nor private research databases, making it difficult to assess negative authority.^[5] At the time of writing, USCIS is in the process of consolidating agency authorities in the new USCIS Policy Manual, which may help address the issue of negative authority.^[6]

On a yet more granular level, practices may vary appreciably between various consular posts and domestic immigration Field Offices. Liaisons of the American Immigration Lawyers Association meet routinely with immigration agency counterparts to track local practices, though this information is not available to the public at large.^[7]

1. Core concepts

Unlike familiar areas of U.S jurisprudence with deep common law roots, immigration is the product of a patchwork of statutes and subsequent interpretation. Few unifying themes can be said to exist in immigration policy, perhaps apart from primary concern for the unification of families.^[8] Still, there are fundamental concepts in U.S. immigration law which are critical to understand any part of its functioning. This Section is intended as a primer and reference to clarify subsequent Chapters.

1. Barriers to admission, bases for deportation

Inadmissibility. U.S. immigration law sets forth a laundry list of grounds of inadmissibility.^[9] Both in the process of applying for a visa, and when seeking admission at a U.S. port of entry, a noncitizen will be assessed in light of these grounds. Contrary to popular understanding, possession of a valid visa does not guarantee entry to the United States; rather, it is merely permission to apply for entry based on the travel purpose tied to the visa category.^[10]

If any ground of inadmissibility applies to the noncitizen he will be denied a visa or admission to the U.S., though as described below he may qualify to apply for a waiver.^[11] Grounds of inadmissibility include the following major categories:^[12]

• Health-related grounds. Bars entry of those with certain communicable diseases, lacking certain vaccinations, who abuse drugs, or who have a physical or mental disorder that threatens others or the applicant himself.^[13]
• Crime-related grounds. An exceedingly complex area of immigration law, noncitizens may be barred if it is determined they engaged in criminal activity, even if absent conviction.^[14]
• Security-related grounds. An individual is inadmissible if determined to have engaged in certain acts threatening the U.S. state,^[15] such as providing financial support to terrorist groups.^[16]
• Public charge grounds. A noncitizen may not enter the U.S. if determined likely to become a public charge, or drain on public resources.^[17] This ground has given rise to the requirement that a U.S. family member guarantee financial support to any foreign national sponsored for a visa; a requirement with important implications for matrimonial attorneys.^[18]
• Immigration violators. An individual may be rendered inadmissible if previously deported or unlawfully present in the United States.^[19] An individual who overstays a visa may be subsequently inadmissible for a decade, even if she originally entered the U.S. in a lawful manner.^[20]

Waivers. A noncitizen determined to be inadmissible may be eligible to seek a waiver. For a noncitizen seeking permanent status in the U.S., a successful waiver will often depend upon showing that a qualifying U.S. family member would experience “extreme hardship” were the waiver denied.^[21] In practice, this requires demonstrating that it would be a hardship both if the family were separated, and also if forced to relocate to the foreign national’s country. Noncitizens applying for temporary status may be able to apply for a broader waiver that does not rely on the existence of a qualifying family relationship.^[22]

Deportability. Just as the immigration statute lists numerous grounds on which a noncitizen may be found inadmissible to the U.S., it lists grounds on which a noncitizen may be deported.^[23] In practice, the most likely reason a noncitizen would be placed into deportation proceedings is commission of a criminal offense or multiple immigration law violations. Since there are vastly more noncitizens present in the U.S. than could ever be deported under the current system, the immigration authorities have formally prioritized deportation of such individuals.^[24] An individual unlawfully present, without criminal law or recent immigration law violations, is unlikely to qualify as an enforcement priority.

Defenses to removal. There are limited defenses available to a respondent in removal proceedings. These defenses are referred to collectively as forms of relief from removal. Commonly sought forms of relief include the following.

• Adjustment of status. As described in detail in a subsequent chapter,^[25] adjustment of status refers to the process of becoming a lawful permanent resident within the U.S. based on an approved family or employment visa petition. Once an individual has been placed into deportation proceedings, the immigration judge has exclusive jurisdiction over the decision to grant adjustment of status.^[26]
• Cancellation of removal for permanent residents. An individual with status as a lawful permanent resident for five or more years, and who has not been convicted of an aggravated felony, may qualify for this form of relief.^[27] As a discretionary form of relief, the respondent will need to convince the immigration judge that the equities of his case merit granting relief.^[28]
• Cancellation of removal for non-permanent residents. A noncitizen present in the U.S. for ten or more years, and who meets other requirements such as good moral character, may qualify for this ground of relief.^[29] Eligibility requires demonstrating that a qualifying U.S. family member would face “exceptional and extremely unusual hardship” if relief is denied. Hardship to the noncitizen himself is irrelevant.^[30]
• Asylum & withholding of removal. Asylum is available to certain individuals facing persecution based on race, religion, nationality, political opinion or membership in a particular social group.^[31] Respondents in removal proceedings are often unable to apply for asylum, as such applications generally must be sought within one year of arrival in the U.S.^[32] An individual facing that bar may apply under the heightened burden required for withholding of removal.^[33]
• U-Visas, T-Visas. Respondents may qualify for relief from removal as survivors of qualifying crimes (U-Visas) or of human trafficking (T-Visas). These forms of relief are described below.
• Convention Against Torture. Often the last resort for respondents, the Convention Against Torture provides relief for those who can meet the steep burden of showing they are “more likely than not” to face torture if deported.^[34]

Though not technically a form of relief from removal, a respondent may also request an exercise of prosecutorial discretion to secure administrative closure of his case. Following an informally described process, the respondent presents his equities to the Office of Chief Counsel (i.e., immigration prosecutor) and requests dismissal of his case. Success turns on whether the respondent can convince the OCC that his is not a priority case for deportation under the informally promulgated agency guidelines.

1. Overview of immigration statuses

There is a mind-numbing array of immigration statuses a foreign national may hold in the U.S. Fortunately, the distinctions between most of these may be safely ignored by the matrimonial attorney. Three fundamental concepts, however, should be distinguished: those on temporary statuses; Lawful Permanent Residents (LPRs); and U.S. citizens.

Temporary statuses. Foreign nationals may travel to the U.S. on a temporary basis for any of a myriad of purposes. Visas issued for temporary stays in the United States are referred to as non-immigrant visas. The long list of visa designations is often referred to by immigration lawyers as the “alphabet soup.” The reason for the prolific list of visa categories is that authorization of a visa is always tied to classification of the purpose of intended travel. Hence, there is no generic “temporary work” visa available for travel to the U.S. Rather, a particular work visa category exists for a specific job role (and generally is tied to a specific employer). In addition to the work-related visa categories described below^[35] – and more common – are the following categories of temporary visas:

• Business visitors (B-1). B-1 visa holders are authorized to travel to the U.S. for the purpose of conducting business on behalf of their foreign employer. For example, a business in Portugal might send a sales rep to Boston to negotiate a new service contract with a U.S.-based business.
• Visitors for pleasure (B-2). B-2 Visas (i.e., tourist visas) are intended for temporary travel to the U.S. for personal, non-work-related reasons. For example, a woman from Brazil might seek a B-2 Visa to visit her daughter in Chicago who is expecting a child.

Related to B-1/-2 Visas but importantly distinct is the Visa Waiver Program (VWP). The VWP is available to individuals traveling to the U.S. from certain designated countries with low levels of immigration law violations. Individuals from eligible countries apply for travel using the online Electronic System for Travel Authorization, to pre-clear their trip prior to boarding their out-bound flight.^[36] A VWP entrant may remain in the U.S. for up to 90-days.

Often the most daunting burden to securing a temporary visa is demonstrating nonimmigrant intent. The immigration statute places on the noncitizen the burden of persuasion to demonstrate that she does not intend to permanently relocate (immigrate) to the U.S.^[37] To meet this burden she must demonstrate her ties to the home country, such as property ownership, employment, and family ties.^[38]

For a complete reference table explaining the visa categories, please refer to the Appendix.

Lawful Permanent Residence (LPR). Often referred to as having a “green card,” a Lawful Permanent Resident (LPR) has the ability to reside and work permanently in the United States.^[39] The status is not to be confused with U.S. citizenship, as described in a subsequent section of this chapter.

The two key rights of an LPR are to reside and work in the United States indefinitely.^[40] Unless later disqualified from doing so, an LPR may retain her status for the rest of her life and has no duty to pursue U.S. citizenship if she elects not to. LPRs are entitled to seek almost all forms of lawful employment in the U.S. Exceptions lie for job roles requiring security clearance and for certain government contracts reserved for U.S. citizens. In practice, most LPRs participate in the workforce as easily as U.S. citizens.

There are two core reasons that a status as an LPR is less secure than U.S. citizenship. First, prior to becoming a citizen, an LPR remains subject to the grounds of inadmissibility and deportation. Should an LPR commit a crime, for example, she could be barred from entry after departing the U.S. (under a ground of inadmissibility), or could be placed into removal proceedings (under a ground of deportation). A DUI is not a deportable offense, but may trigger a inadmissibility under a ground applicable to habitual alcohol abusers.

Second, an LPR may be found to have “abandoned” her status by time spent outside the United States.^[41] Contrary to common perception in immigrant communities, there is no designated length of foreign travel that triggers abandonment.^[42] Rather, the question is whether the LPR’s actions show the intention to establish residence in a foreign country.^[43] Hence, commencing employment in a foreign country, unless limited in duration ab initio, may demonstrate the intent to take up residence there and result in abandonment; a year-long sojourn around the world may not result in abandonment, if the subjective intent was extended travel for pleasure.^[44]

iii. Citizenship

U.S. citizenship connotes the status of being a permanent member of our political state with allegiance to the same.^[45] Once granted status as a U.S. citizen – a process referred to as naturalization – a foreign-born individual has the same standing as one who acquired citizenship through birth in the United States.

Citizenship at birth. There are two ways a person may come to possess U.S. citizenship. First, the person may receive citizenship by operation of law, either by location of birth (jus soli) or through citizenship of her parents (jus sanguinis). Under the Fourteenth Amendment, all persons born in the United States are citizens;^[46] subsequent statutes have expanded this birthright citizenship to other geographic areas of U.S. control.^[47] Citizenship derived through parental citizenship is governed by statute and is devilishly complex. Whether a foreign-born child derives citizenship through her parents is governed by the statute in effect at the time of her birth.^[48] Whether citizenship is passed to the child will depend on factors including: the date of birth; whether the child was born in wedlock; and whether the parent resided in the U.S.^[49]

Citizenship through naturalization. The process of acquiring U.S. citizenship after birth is called naturalization.^[50] Generally, the only means of becoming a U.S. citizen is through first acquiring status as a Lawful Permanent Resident.^[51] The basic requirements for naturalizing are:

1. Must be a lawful permanent resident;
2. Must be 18 years or older;
3. Must have resided continuously in the United States for five or more years after being admitted as an LPR, three years if married to a U.S. citizen;
4. Be a person of good moral character;
5. Be willing to take an oath of allegiance to the United States; and
6. Pass tests of English language ability and U.S. civics.^[52]

Once naturalized, the individual possesses the same rights and responsibilities as an individual who obtains citizenship through birth.

1. Avenues for immigrating to the U.S.

The United States has what might be called a an “invitation only” approach to immigration. Virtually all paths to long term legal status rely on the sponsorship of a U.S.-based petitioner – generally a family member or employer. Unlike some other developed nations, there is no generic application procedure for all foreign nationals; there is no all-purpose “line” to get in. The invitation only system is important for matrimonial lawyers to appreciate, as any foreign resident of the U.S. will have a legal relationship to a sponsoring family member or business. Much of this book deals with the implications of those legal relationships with family-based petitioners.

1. Family-based options

Immigration based on familial relationship has long been a cornerstone of U.S. policy. Only certain qualifying familiar relationships may serve as a basis for immigration, and the timelines vary substantially based on the type of relationship involved.

Immediate relatives of U.S. citizens have the shortest wait to achieve residence. These include the spouse, unmarried child (under 21) or parent of the U.S. citizen.^[53] Because there are no limits on the number of visas available to immediate relatives each year, the waiting involved is only to permit processing of necessary paperwork. At the time of writing, processing time for an immediate relative petition was approximately six months.^[54]

By contrast, other relationships – referred to collectively as family preference categories – are limited in number each year to a total of 226,000.^[55] Each preference category is further limited to a specified number. Moreover, the immigration statute places limitations based on country of origin.^[56] Because demand for all preference categories outstrips supply, applicants have to wait for a visa number to become available to them. For the three countries – China, India and Mexico – where country limitations are met, the wait times are in some categories substantially longer. A sense of the wait times can be gleaned from the Visa Bulletin, published monthly by the U.S. State Department.^[57]

Preference Category	Approximate waiting time
	China	India	Mexico	All other countries
Unmarried Sons and Daughters of U.S. Citizens (F1)	8 years	8 years	21 years	8 years
Spouses and Children of LPRs (F2A)	2 years	2 years	2 years	2 years
Unmarried Sons and Daughters (21 years+) of LPRs (F2B)	9 years	9 years	20 years	9 years
Unmarried Sons and Daughters (21 years of age or older) of LPRs (F3)	12 years	12 years	19 years	12 years
Brothers and Sisters of Adult U.S. Citizens (F4)	13 years	13 years	18 years	13 years

 

Another common form of family-based visa is the fiancé/fiancée visa (K-1 visa).^[58] For a couple intending to wed, the K-1 visa may present a more expedient means of bringing the foreign national to the U.S., as opposed to completing the marriage abroad before initiating a marriage-based visa. Like marriage-based visas, K-1s are not subject to numerical caps.

1. Employer-sponsored

Two things should be generally understood about the U.S. immigration system as it relates to employer-sponsored options. First, with limited exceptions, our system favors highly skilled works. Second, the system requires the cooperation and sponsorship of a U.S. employer; with limited exceptions, an employment-related visa will be tied to a particular U.S. employer. For a complete list of employment visa classifications, please see the Appendix.

Temporary workers. Most employment-related visas authorize only temporary employment in the U.S.

Examples of skilled workers who may qualify for visa classification include:

• Computer programmers, scientists and engineers;^[59]
• Managers, executives and specialized employees of international companies with operations in the U.S.;^[60]
• Registered nurses;^[61]
• Certain professionals from Canada and Mexico such as psychologists and lawyers;
• Internationally-recognized athletes and entertainers;^[62]
• Religious workers, such as ministers and rabbis;

Examples of unskilled workers who may qualify for visa classification include:

• Seasonal agricultural workers;^[63]
• Temporary non-agricultural workers filling a spike in demand for a type of service.^[64]

Permanent (immigrant workers). Approximately 140,000 permanent employment-related visas are available each year, representing a tiny fraction of all visas issued by the U.S.^[65] In most instances the U.S. employer faces the substantial challenge of demonstrating that the position at issue cannot be filled by the domestic labor market. Referred to as Labor Certification,^[66] this step adds substantial complexity and expense to the process of securing the visa. The following are the principal three categories of permanent employment-based visas:

Who qualifies?	Designation	Labor cert required?
Persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers	EB-1	No
Members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.	EB-2	Generally yes
Professionals, skilled workers, and other workers.	EB-3	Yes

 

Derivative status for family members. Family members will typically not be authorized to work in the U.S. unless they qualify for a visa classification in their own right (i.e., not merely as a derivative family member).^[67]

iii. Investors

There are visa strategies available to individuals able to invest in U.S.-based ventures. Treaty traders and investors are – as the name implies – categories authorized by international treaties with certain qualifying countries.^[68] Such classification allows the foreign individual to either conduct international trade, or else to develop investments.^[69] Spouses and children of a treaty trader or investor may be authorized as derivatives, though as with employment-based derivatives may not work unless otherwise authorized.^[70]

The EB-5 program provides a permanent visa for foreign nationals able to invest substantially in U.S.-based enterprises.^[71] The required investment is $1 million, though $500,000 suffices in qualifying high-needs geographic areas.^[72] Among other regulatory requirements, the investment must create at least ten jobs.^[73] Both the principal EB-5 investor and accompanying family members are initially given a two-year conditional status. As with conditional status in marriage-based cases – as discussed in detail below^[74] – conditional EB-5 recipients must make a showing at the two-year mark of the residency, demonstrating that the investment met regulatory requirements.^[75] Failure to meet this showing results in loss of residency status for both the principal EB-5 recipient as well as any derivative family members.

1. Humanitarian grounds

There are a limited number of avenues available to U.S. residents on what may collectively be thought of as humanitarian grounds.

Asylum and refugees. A person qualifies for refugee status on the basis of a well-founded fear that she will face persecution in a country on the basis of one of these protected grounds: race; religion; nationality; membership in a particular social group; or political opinion. Whether a person seeks refuge or asylum reflects where the adjudication is performed. Refugees apply outside the United States, often at camps administered by the United Nations. Asylum is sought within the U.S. – it may be sought affirmatively by an application to USCIS,^[76] or raised defensively by an individual in removal proceedings.

Survivors of qualifying crimes. These visas are available of victims of qualifying serious crimes who have been helpful to the prosecution of the offense.^[77] Intended to encourage cooperation with law enforcement, a U-Visa petitioner must obtain certification that she has been helpful to the investigating agency.^[78] U-Visas are frequently sought by victims of domestic violence, which is a qualifying crime category under the INA.^[79] Certification by a law enforcement agency does not imply merit to the accusations against the alleged offender, and a U-Visa grant does not require that a conviction result from the allegations.

Survivors of human trafficking . T-Visas are available for those who have survived a “severe form of trafficking in persons.”^[80] Generally, the T-Visa is available to an individual who has been brought to the U.S. to engage in commercial sex or other forced labor.^[81] Like the U-Visa for survivors of crime, the T-Visa requires cooperation with law enforcement, though unlike the U-Visa, formal certification of such cooperation is not strictly required.^[82] Derivative T-Visa status may be available to a spouse or children of the principal applicant, though such derivatives must demonstrate that they would experience hardship if denied status.^[83] A parent or sibling of the principal may also qualify for status if it is determined that s/he would face retaliation for the principal applicant’s cooperation with law enforcement.^[84]

Deferred Action for Childhood Arrivals (DACA). On June 15, 2012 the Obama Administration, by executive action, created a special form of relief for certain noncitizens who entered the U.S. before age 16.^[85] Deferred Action for Childhood Arrivals (DACA) requires that the applicant have maintained a continuity of presence in the U.S., completed educational requirements, and avoided serious criminal entanglements.^[86] In 2014 the Obama Administration sought to expand the scope of DACA, and to extend benefits to certain undocumented parents of U.S. citizens.^[87]

1. Diversity visa

Immigration strategies are almost always tied to a U.S.-based petitioner (whether a family member or employer) or to humanitarian grounds. The chief exception to this rule is this Diversity Visa lottery.^[88] Indeed a lottery, this process is open to individuals from countries with low rates of admission to the U.S.^[89] Applicants participate by filing an online application.^[90] Those selected may then apply for a visa at the appropriate U.S. consulate, along with spouses and children.^[91] After being admitted to the U.S., the immigration status of such family members is not tied to the principal lottery winner.

1. Agencies involved

This Section gives a short introduction to the principal agencies charged with administering U.S. immigration law. Immigration agencies were massively restructured with the creation of the Department of Homeland Security (DHS) in 2002,^[92] after which the Immigration and Naturalization Service (INS) ceased existing as such. At the time of writing, the expanded program has been halted by litigation initiated by a consortium of States.^[93]

1. United States Citizenship and Immigration Services (USCIS)

U.S. Citizenship and Immigration Services (USCIS) is the primary agency charged with granting immigration benefits other than visas.^[94] USCIS has sole authority to approve immigration petitions, the “invitations” to foreign nationals filed by U.S. individuals or employers. Adjudications before USCIS typically begin with the filing of an application packet. Some adjudications – such as marriage-based adjustment of status and naturalization – also involve an in-person interview.

Filings are made by mail or courier at one of several Lockbox locations within the U.S. Lockboxes are essentially USCIS’s mailrooms, operated by private contractors.^[95] The Lockbox performs an initial review of the application for completeness, and will reject it – for example – if it lacks a required filing fee.^[96] Applications that require in-person interviews are first screened at the National Benefits Center, which conducts background checks and reviews supporting documentation.^[97] Applicants may be issued a Request for Evidence (RFE) to remedy documentation shortcomings; these may significantly increase the processing time for a particular benefit.^[98]

USCIS maintains Field Offices throughout the United States,^[99] ranging in size from scores of adjudicators to only a few staff. Field Offices are responsible for in-person interviews for immigration benefits, primarily applications to adjust status to permanent residency and for naturalization. Adjudications are conducted under oath in the format of an interview before a USCIS field officer.^[100] Such interviews are informal in the sense that rules of evidence do not apply.

USCIS maintains an Alien File (“A File”) on all immigrants at its National Records Center (NRC).^[101] Such files may be requested under the Freedom of Information Act.^[102] Requests are made by filing a Form G-639 at the NRC,^[103] and take multiple months to process. Personal information will be redacted per the Privacy Act unless the individual has consented to disclosure.^[104]

1. Department of State (DOS)

Within the Department of State (DOS), the Bureau of Consular Affairs has responsibility for issuing immigration documents for those outside the United States seeking to enter the county.^[105] This includes both nonimmigrant (temporary) and immigrant (permanent) visas, as well as documentation of U.S. citizenship status for those residing outside the U.S.

Attorneys and applicants interact with DOS in two primary ways. First, in immigrant visa cases, application packets are reviewed at the U.S.-based National Visa Center (NVC) before being forwarded to the appropriate U.S. consulate. The case must be “documentarily qualified” – meaning all supporting documents received by the NVC – before it will progress to a U.S. consulate.^[106] This can prove a long, frustrating process, especially for pro se applicants, and consequently delays of one year or more at the NVC are not unusual.

Second, attorneys and applicants will interface with one of the 172 worldwide consular posts that will ultimately adjudicate the visa.^[107] Consulates adjudicate a staggering number of visa applications each year – nearly 10,000,000 in FY 2014.^[108] Applicants are set for interview dates once their visa packets have been received by the consulate with jurisdiction over the matter. While individual consulates have discretion to permit attorneys to attend visa interviews,^[109] virtually all interviews are conducted without counsel present. Visa interviews are fast-paced affairs that may consist of five minutes or less with a consular officer at an interview window.

State Department visa adjudications are insulated from judicial review under a powerful protection that has no analogy under U.S. domestic law. The so-called “doctrine of consular non-reviewability” is essentially what the name suggests.^[110] Those denied visas have no right of appeal within the State Department, and typically have no recourse in Article III court.^[111] Some strategies exist for review of pure issues of law,^[112] and in other extraordinary situations, but effectively the opportunities for review of visa denials are quite limited.

iii. Executive Office of Immigration Review (EOIR)

The Executive Office of Immigration Review (EOIR) is located in the office of the Attorney General.^[113] Hence while referred to as immigration “court,” EOIR is a quasi-judicial administrative agency, not an Article III tribunal.^[114] Following immigration reform in 1996, deportation proceedings are now termed “removal” proceedings.^[115]

Removal proceedings are commenced when an attorney in the Office of Chief Counsel (OCC) files a Form I-862, Notice to Appear in immigration court.^[116] Roughly analogous to an information in criminal law, this charging document states the grounds on which a foreign national is alleged to be removable. The respondent may be detained throughout the duration of proceedings or released on bond.^[117]

Proceedings are conducted in a court-like setting before a robed Immigration Judge (IJ), who is an adjudicative attorney appointed by the Attorney General.^[118] At a Master Calendar Hearing (MCH) – roughly analogous to an arraignment – the OCC states the grounds of removability.^[119] The respondent concedes or denies the government’s allegations and notifies the IJ of any defenses to removal that she plans to raise.^[120] The lag time between the MCH and final merits hearing – the Individual Calendar hearing, roughly analogous to a trial – may easily run to one year or more.^[121] Respondents who fail to attend a hearing will be ordered removed in absentia.^[122]

In practice, many respondents concede removability at the outset of proceedings. Advocacy in removal proceedings, for example, does not typically turn on whether or not an individual was lawfully admitted to the U.S. Instead, the focus is often on whether an individual qualifies for relief from removal, the functional equivalent of an affirmative defense in criminal law. See Section B(i) above for a discussion of common forms of relief from removal.

Family law counsel emphatically should not enter an appearance in a client’s immigration court proceedings.^[123] It is the practice of many immigration judges to deny withdrawal of counsel even with written client consent absent substitution of counsel. Hence, unless an attorney is prepared to undertake the entire removal defense she should never enter an appearance in EOIR.

1. Immigration and Customs Enforcement (ICE)

Immigration and Customs Enforcement (ICE) is the immigration law enforcement arm of the Department of Homeland Security within the domestic US.^[124] Enforcement and Removal Operations (ERO) apprehends, detains and removes (deports) foreign nationals from the U.S.^[125] In Fiscal Year 2013, ERO removed approximately 438,000 foreign nationals.^[126]

The Homeland Security Investigations (HSI) division of ICE is less frequently encountered in routine legal work with foreign national clients.^[127] HSI focuses on “combating criminal organizations illegally exploiting America’s travel, trade, financial and immigration systems.”^[128]

1. Customs and Border Protection (CBP)

Customs and Border Protection (CBP) is responsible for inspecting persons and property entering the United States.^[129] Individuals entering the U.S., including U.S. citizens, have no right to representation at ports of entry.^[130] CBP has extremely broad authority to detain, search and inspect all such individuals.^[131] The agency has interpreted the scope of this authority to include all domestic territory within 100 miles of a U.S. border.^[132] It is exceedingly unlikely that family law counsel would have occasion to interface with CBP in connection to a representation.

 

^[1] Cf. Michael Lipsky, Street Level Bureaucracy: Dilemmas of the Individual in Public Services (1980) (identifying problems with street-level bureaucracy). The author is indebted to Prof. Eric Berger for drawing his attention to these critiques.

^[2] For a discussion of such appellate bodies see Section C below.

^[3] Cf. U.S. Dept. of State, Foreign Affairs Manual, http://www.state.gov/m/a/dir/regs/fam/ (last visited July 28, 2015).

^[4] USCIS, Immigration Handbooks, Manuals and Guidance, http://1.usa.gov/1VMdPPn (last visited July 28, 2015).

^[5] See USCIS, Policy Memoranda, http://www.uscis.gov/laws/policy-memoranda (last visited July 28, 2015).

^[6] See id.

^[7] Cf. American Immigration Lawyers Association, Homepage, http://www.aila.org/ (last visited July 28, 2015).

^[8] See, e.g., Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2019 (2012).

^[9] INA § 212, 8 U.S.C. § 1182 (setting forth grounds of inadmissibility).

^[10] Cf. INA § 221(h), 8 U.S.C. § 1201(h) (“Nothing in this Act shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted [to] the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this Act, or any other provision of law. . .”).

^[11] See Section B(i) infra.

^[12] The list is not exhaustive.

^[13] INA § 212(a) (1)(a), 8 U.S.C. § 1182(a) (1)(a).

^[14] INA § 212(a) (2)(A)(i), 8 U.S.C. § 1182(a) (2)(A)(i) (regarding admission to committing acts constituting essential elements of qualifying offenses). Cf. INA § 212(2), 8 U.S.C. § 1182(2) (criminal grounds of inadmissibility, generally).

^[15] INA § 212(a)(3), 8 U.S.C. § 1182(a)(3).

^[16] INA § 212(a)(3)(B)(iv)(VI), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).

^[17] INA § 212(a)(4), 8 U.S.C. § 1182(a)(4).

^[18] xx – See chapter on I-864 matters, forthcoming.

^[19] INA § 212(a)(9), 8 U.S.C. § 1182(a)(9).

^[20] INA § 212(a)(9)(B)(II), 8 U.S.C. § 1182(a)(9)(B)(II).

^[21] Extreme hardship waivers are available for certain crime-related grounds, INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B), fraud/misrepresentation grounds, INA § 212(i), 8 U.S.C. § 1182(i), and unlawful presence grounds of inadmissibility, INA § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v).

^[22] INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).

^[23] INA § 237, 8 U.S.C. § 1227.

^[24] Cf. Memorandum from Jeh Charles Johnson, DHS Secretary, to Thomas S. Winkowski, USCIS Acting Dir., et al., Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), available at http://1.usa.gov/1uNqfdE.

^[25] xx – Chapter forthcoming.

^[26] 8 C.F.R. § 245.2(a)(1).

^[27] INA § 240A(a), 8 U.S.C. § 1229b(a).

^[28] INA § 240A(a), 8 U.S.C. § 1229b(a).

^[29] INA § 240A(b), 8 U.S.C. § 1229b.

^[30] Prior to 1996 a respondent could prevent deportation by demonstrating that she would experience extreme hardship as a result. Termed “suspension of deportation,” this form of relief was abolished by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (enacted as Division C of Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, §§ 304(a), 308(b)(7), 110 Stat. 3009, 3009-587, 3009-615).

^[31] See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (defining the term refugee).

^[32] INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).

^[33] INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).

^[34] 8 C.F.R. §§ 208.16(c)(2), 1208.16(c)(2). See 8 C.F.R. §§ 208.18(a)(1), 1208.18(a)(1) (defining torture).

^[35] See Section C(ii) infra.

^[36] See U.S. Customs and Border Protection, Welcome to the Electronic System for Travel Authorization, https://esta.cbp.dhs.gov/esta/ (last visited July 28, 2015).

^[37] INA § 214(b), 8 U.S.C. § 1184(b). Cf. 9 FAM 41.11 N1.5

^[38] Cf. 9 FAM 41.11.

^[39] INA §101(a)(20), 8 U.S.C. §1101(a)(20) (status as LPR connotes right to reside permanently in the U.S. as an immigrant).

^[40] See USCIS, I-90, Application to Replace Permanent Resident Card, available at http://www.uscis.gov/i-90 (last visited July 28, 2015).

^[41] Matter of Huang, 19 I&N Dec. 749 (BIA 1988).

^[42] 9 FAM 42.22 N1.5 (“The term ‘temporary’ cannot be defined in terms of elapsed time alone. The intent of the alien, when it can be determined, will control. . .”).

^[43] 9 FAM 42.22 N1.4 (listing factors to be considered as evidence).

^[44] 9 FAM 42.22 N1.1 (“A lawful permanent resident (LPR) who has remained outside the United States for more than one year may be eligible for returning resident status. . .”).

^[45] Cf. Charles Gordon et al., Immigration Law and Procedure § 1.03[8][a] (2015) (providing overview of the term and noting it is defined nowhere in the Constitution).

^[46] U.S. Const. amend. XIV. See also INA § 301(a) (same).

^[47] INA § 101(a)(38), 8 U.S.C. § 1101(a)(38) (the United States includes the “continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands”).

^[48] 7 FAM 1131.1-2.

^[49] Cf. 7 FAM 1130 (explaining acquisition of citizenship by birth abroad to U.S. citizen parent).

^[50] INA § 101(a)(23), 8 U.S.C. § 1101(a)(23).

^[51] INA § 316(a), 8 U.S.C. § 1427(a). An exception exists for foreign nationals serving in the U.S. armed forces at time of war, who may apply for naturalization without a prior period of LPR status. INA § 329, 8 U.S.C. § 1440.

^[52] See generally USCIS, A Guide to Naturalization, http://1.usa.gov/1oICMvY (last visited July 28, 2015).

^[53] Cf. 9 FAM 42.21 N1 (and listing other relationships qualifying as immediate relatives).

^[54] USCIS, USCIS Processing Time Information, http://1.usa.gov/1gWEBx0 (last visited July 28, 2015).

^[55] All immediate relative visas count against an initial allotment of 480,000 preference category visas, but a “floor” of 226,000 is always available annually. INA § 201(c)(1)(B)(ii), 8 U.S.C. § 1151(c)(1)(B)(ii).

^[56] INA §202(a)(2), 8 U.S.C. § 1152(a)(2) (capping per-country visa allotment at 7%).

^[57] Bureau of Consular Affairs, U.S. Dep’t of State, Visa Bulletin, Vol. IX, No. 82 (July 2015). For the most current Visa Bulletin visit U.S. Dept. of State, Bureau of Consular Affairs, Visa Bulletin, http://1.usa.gov/1gEl7Or (last visited July 28, 2015).

^[58] INA §101(a)(15)(K)(i), 8 U.S.C. §1101(a)(15)(K)(i).

^[59] INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b).

^[60] INA §101(a)(15)(L), 8 U.S.C. §1101(a)(15)(L).

^[61] 8 C.F.R. §214.2(h)(1)(ii)(A).

^[62] INA §101(a)(15)(P), 8 U.S.C. §1101(a)(15)(P).

^[63] INA §101(a)(15)(H)(ii)(a), 8 U.S.C. §1101(a)(15)(H)(ii)(a).

^[64] 8 C.F.R. §214.2(h)(6).

^[65] See USCIS, Permanent Workers, http://1.usa.gov/TdsBlP (last visited July 28, 2015).

^[66] See INA §§212(a)(5)(A) & (p), 8 U.S.C. §§1182(a)(5)(A) & (p).

^[67] An important exception was announced shortly before the time of writing, whereby work authorization would be extended to spouses of certain H-1B visa holders. USCIS, Press Release, DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence (Feb. 24, 2015), available at http://1.usa.gov/1MOJU4D.

^[68] http://travel.state.gov/content/visas/english/fees/treaty.html

^[69] INA § 101(a)(15)(E), 8 U.S.C. § 1101(a)(15)(E).

^[70] INA § 214(e)(6), 8 U.S.C. § 1184(e)(6).

^[71] INA § 203(b)(5), 8 U.S.C. § 1153(b)(5).

^[72] 8 C.F.R. §204.6(f)(2) (defining “targeted employment area”).

^[73] 8 C.F.R. § 204.6(e).

^[74] xx – See forthcoming chapter

^[75] See 8 C.F.R. § 216.6.

^[76] See Section D(i) (describing USCIS).

^[77] INA §101(a)(15)(U), 8 U.S.C. §1101(a)(15)(U).

^[78] 8 C.F.R. §214.14(c)(2)(i).

^[79] 8 C.F.R. §214.14(a)(9).

^[80] INA § 101(a)(15)(T)(i), 8 U.S.C. § 1101(a)(15)(T)(i). The visa category was created by the Trafficking Victims Protection Act of 2000. Div. A of Pub. L. No. 106-386, § 102(a), 114 Stat. 1464, 1466 (2000).

^[81] See 8 C.F.R. § 214.11(a) (defining “severe forms of trafficking in persons”).

^[82] See 8 C.F.R. § 214.11(f).

^[83] NA § 101(a)(15)(T)(ii), 8 U.S.C. § 1101(a)(15)(T)(ii).

^[84] INA § 101(a)(15)(T)(ii)(III), 8 U.S.C. § 1101(a)(15)(T)(ii)(III)).

^[85] Memorandum from Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at http://1.usa.gov/1DNaaWp.

^[86] Id.

^[87] Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014), available at http://1.usa.gov/1pfF33I.

^[88] INA § 203(d), 8 U.S.C. § 1153(d).

^[89] A list of countries eligible for Diversity Visa registration is published annually and available online from the State Department. See U.S. Dept. of State, The Diversity Visa Process, http://1.usa.gov/1xOdOSt (last visited July 28, 2015).

^[90] INA § 204(a)(1)(G), 8 U.S.C. § 1154(a)(1)(G) (delegating authority to Secretary of State to designate place and manner of application).

^[91] INA § 203(d), 8 U.S.C. § 1153(d) (authorizing derivative visas for family members).

^[92] Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified in pertinent part in scattered sections of 6 and 8 U.S.C.).

^[93] Texas v. U.S., 787 F.3d 733 (5th Cir. May 26, 2015) (denying motion to stay preliminary injunction or narrow scope).

^[94] See USCIS, About US, http://www.uscis.gov/aboutus (last visited July 28, 2015).

^[95] See USCIS, Office of Intake and Document Production, http://1.usa.gov/1ONJXgK (last visited July 8, 2015).

^[96] See USCIS, Lockbox Intake Processing Tip Sheet, http://1.usa.gov/1JQDyNw (July 28, 2015).

^[97] USCIS, The National Benefits Center: What It Is and What it Does (June 5, 2012), http://1.usa.gov/1BQVIBa.

^[98] USCIS, Adjudicator’s Field Manual § 10.5(a) (describing process of issuing an RFE).

^[99] Offices can be located at http://www.uscis.gov/about-us/find-uscis-office/field-offices (last visited June 29, 2015).

^[100] Cf. USCIS, Adjudicator’s Field Manual § 15 (setting forth guidelines for interviews).

^[101] See USCIS, National Records Center, http://1.usa.gov/1Da7OWy (last visited July 28, 29015).

^[102] See generally USCIS, USCIS Freedom of Information Act and Privacy Act, http://1.usa.gov/1DVuYPH (last visited July 29, 2015).

^[103] USCIS, G-639, Freedom of Information Act/Privacy Act Request, http://www.uscis.gov/g-639 (last visited July 28, 2015).

^[104] Cf. 5 U.S.C. §552a(g).

^[105] INA § 104(b), 8 U.S.C. § 1104(b).

^[106] 9 FAM 42.63 PN9.

^[107] Dept. of State, Bureau of Consular Affairs, Find a U.S. Embassy or Consulate, http://1.usa.gov/1Jpfrb3 (last visited July 28, 2015).

^[108] Department of State, Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts: Fiscal Years 2010 – 2014, available at http://1.usa.gov/1m4hGEt (last visited June 30, 2015).

^[109] 9 FAM 40.4 N12.3.

^[110] Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).

^[111] A limited exception to the doctrine has been recognized in the Ninth Circuit, but the future of that exception is in doubt. Din v. Kerry, 718 F.3d 856, 860 (9th Cir. 2013), overruled by Kerry v. Din, 135 S. Ct. 2128 (2015) (plurality opinion).

^[112] An attorney may effectuate a de facto appeal of a pure issue of law by seeking review through the Visa Office’s LegalNet system. Cf. 9 FAM Appendix E, 800. In practice most visa denials are made on fact-based determinations for which review cannot be effectively sought through LegalNet.

^[113] Cf. 8 C.F.R. § 1003.0(a).

^[114] See generally 8 C.F.R. § 1003.0.

^[115] INA § 240(a)(1), 8 U.S.C. § 1229a(a)(1).

^[116] INA § 239(a)(1), 8 U.S.C. § 1229(a)(1).

^[117] See generally Executive Office of Immigration Review, Immigration Court Practice Manual § 9.3, available at http://1.usa.gov/1SM4xP5 (hereinafter Immigration Court Practice Manual).

^[118] 8 C.F.R. § 1003.10.

^[119] Cf. Immigration Court Practice Manual § 4.15.

^[120] Id. Appendix M (setting forth sample oral pleadings for MCHs).

^[121] See, e.g., Devline Barrett, U.S. Delays Thousands of Immigration Hearings by Nearly 5 Years, Wall Street Journal (Jan. 28, 2015) (“Officials have begun sending out notices that thousands of immigrants awaiting hearings will have their cases pushed back nearly five years, a fresh sign of the pervasive backlogs and delays in the U.S. immigration court system. . . .”).

^[122] INA § 240(b)(5), 8 U.S.C. § 1229a(b)(5).

^[123] Entry of appearance is made before EOIR by filing of a Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative before the Board of Immigration Appeals, available at http://1.usa.gov/1HvLJn9.

^[124] 6 U.S.C. § 251.

^[125] U.C. Immigration and Customs Enforcement, Enforcement and Removal Operations, http://www.ice.gov/ero (last visited July 28, 2015).

^[126] John F. Simanski, DHS Office of Immigration Statistics, Immigration Enforcement Actions: 2013 (Sep. 2014), at 1, available at http://1.usa.gov/1LAPiIA.

^[127] U.S. Immigration and Customs Enforcement, Homeland Security Investigations, http://www.ice.gov/hsi (last visited July 28, 2015).

^[128] Id.

^[129] U.S. Customs and Border Protection, About CBP, http://www.cbp.gov/about (last visited June 30, 2015).

^[130] 8 C.F.R. § 292.5(b).

^[131] INA § 287(c), 8 U.S.C. § 1357(c).

^[132] 8 C.F.R. §287.1(a)(2).