#9142 - Exclusion And Deportation - Immigration Law

Exclusion & Deportation

Exclusion

1. Admission: the key to exclusion is admission:

   1. § 235(a)(1): an alien present in the US who had not been admitted shall be deemed for purposes of this act an applicant for admission:

   2. § 212(a)(6)(A): an applicant for admission is inadmissible (with some exceptions)

2. Inadmissibility or Exclusion Grounds § 212(a)

   1. Alien is inadmissible at a port of entry

      1. Aliens who entered without inspection are inadmissible even if they are still in the US: § 212(a)(6)(A)

      2. Inadmissibility can affect future visa applications or even naturalization if someone is found to have been inadmissible at the time of entry or adjustment of status: § 237(a)(1)(A)

   2. Do not have Valid Passport, visas § 212(a)(7)

   3. Do not have Labor Certification § 212(a)(6)(D)

   4. Document Fraud

      1. Once formally ordered to pay fines under § 274C become inadmissible, subject to discretionary waivers in certain family-related circumstances § 212(d)(12)

      2. Procurement of Immigration documents, benefits, or admission by fraud or misrepresentation become inadmissible for LIFE: § 212(a)(6)(C)(i)

      3. Written or oral false claims of citizenship Separate ground of inadmissibility § 212(a)(6)(C)(i)

   5. Related to Surreptitious Entry

      1. Under IIRAIRA being present in the US without having been admitted or paroled, or having arrived not at an official port of entry § 212(a)(6)(A)

      2. Assisting with unlawful entry §§ 212(a)(6)(E), 212(d)(11)

   6. Going Out of Status or Unlawful Presence

      1. “Unlawfully present” for more than 180 days makes you inadmissible for 3 years

      2. “Unlawfully Present” for more than 1 year makes you inadmissible for 10 years – § 212(a)(9)(B)

         1. Unlawful Presence Defined: Present in US after period of stay authorized OR present without being admitted or paroled

            1. Unlawful presence is CONTINUOUS, NOT ADDED UP

            2. Time granted for voluntary departure does NOT count toward continuous unlawful presence

            3. Violation of admission (visa) terms does not constitute unlawful presence, but does render alien deportable § 237(a)(1)(C)(i)

            4. If you are under 18 it does not count § 212(a)(9)(B)(iii)(I)

            5. If you have a bona fide (not frivolous) asylum application pending, doesn’t count UNLESS worked without authorization § 212(a)(9)(B)(iii)(II)

            6. EX of USCIS position: F-1 students drops out, which makes them deportable, but their presence doesn’t become unlawful (and periods don’t start to run) until IJ hears the case and determines that a violation has occurred: AFM § 40.9.2(b)(1)(E)

            7. Does the time from NTA to removal order count as unlawful presence? USCIS & DOJ says yes

            8. Pendency of removal proceedings (once alien has received Notice to Appear) does not affect the lawfulness of your presence

            9. Change of status: USCIS designates entire waiting period for timely-filed, non-frivolous change of status application as authorized by AG for purposes of § 212(a)(9): 120 day maximum tolling allowed for aliens waiting for administrative processing of application for extension of stay or change or adjustment of statue, as long as person has not worked without authorization: See Page 434

   7. Effect of Removal

      1. Failure to attend removal hearing: Inadmissible for 5 years: § 212(a)(6)(B)

      2. Ordered removed upon arrival: Inadmissible for 5 years: § 212(a)(9)(A)

      3. Ordered Removed after arrival: Inadmissible for 10 years

      4. Ordered removed for 2^nd time: Inadmissible for 20 years

      5. Aggravated Felons: Inadmissible forever

      6. DHS has discretion to waive by allowing to apply for admission § 212(a)(9)(A)(ii)

   8. Entering Without Admission: If either unlawfully present for aggregate of more than 1 year OR removed for any reason and then entered or tries to enter without being admitted, THEN you will be inadmissible for 10 years § 212(a)(9)(C)

   9. Political

      1. Entering US to engage in activities prejudicial to public interest § 212(a)(27)

      2. § 212(a)(28) Catch All Category for Political Viewpoints considered undesirable by Congress: Covers activities of speech, expression, and association

      3. Likely to engage in espionage, sabotage, or other subversion § 212(a)(29)

      4. People whose entry or activities might adversely affect US foreign policy § 212(a)(3)(C)

      5. Certain national security and political grounds CANNOT be waived by DHS Secretary § 212(d)(3)(A)

      6. McGovern Amendment in 1977: When non-immigrant is excludable solely by reason of membership or affiliation with proscribed organization, the Secretary of State should recommend a waiver UNLESS he/she can certify that the person’s admission would be contrary to national security interests

      7. Lookout List: 1990 Act requires DHS and Secretary of State to update list and delete anyone who applies for admission and whose excludability has since been eliminated by INA amendments

   10. Terrorism Exclusions: § 212(a)(3)(B): 9 Different terrorism-related exclusion grounds: Individual associated with terrorist activity OR terrorist organizations

       1. Terrorism Material Support Provision § 212(a)(3)(B)(iv)(VI)

       2. § 212(a)(3)(B) – Logic/Elements

          1. (1) Finding that it is a terrorist organization

          2. Organization must engage in terrorist activity as defined in § 212(a)(3)(B)(iv)

          3. Two Elements for Terrorist Activity

             1. Must be unlawful where committed or would have been unlawful in US

             2. Must involve one of list of enumerated acts in § 212(a)(3)(B)(iii)

          4. (2) Finding that alien offered material support

       3. Defining Terrorist Organization: Growing consensus that NOT all organizations satisfying statutory criteria equally dangerous: Attention focused on breadth of terrorist activity qualifying acts, not as much on unlawful event

   11. Criminal Grounds § 212(a)(2), (a), (b), (c), (h)

       1. Aggravated felony: Deportation ground without an inadmissibility analog: Admitted LPRs if convicted of aggravated felony: § 212(h)

       2. Moral turpitude: crimes of moral turpitude render inadmissibility

       3. LPRs who haven’t resided in the US continuously for 7 years preceding removal proceedings: § 212(h)

       4. Drug Offenses: exceptions to inadmissibility for people convicted of moral turpitude, BUT NOT for drug crimes: § 212(a)(2)(A)(ii)

       5. Relief and Discretion: § 212(h): Discretion will not be exercised for violent or dangerous crimes UNLESS denial would result in exceptional and extremely unusual hardship: 8 CFR § 212.7(d)

   12. Economic Grounds

       1. Labor Certification § 212(a)(5)(A): Evidence that you will become employed

       2. Tax Evaders: Congress added ground for people who formally renounces US Citizenship to evade taxes § 212(a)(10)(e)

       3. Public Charge § 212(a)(4)

          1. State Department defines it as: Primarily dependent on US government for subsistence, demonstrated by receipt of public cash assistance for income maintenance

             1. Many governed programs that provide aid but are not intended to be primary source of cash for income maintenance, like Medicaid, Food Stamps, etc

             2. Public Charge Programs TANF, Supplemental Security income

          2. Predicting Likelihood individual will become public charge: Factors to be considered in § 212(a)(4)(B)

          3. Welfare Reform Act of 1996 made affidavits of support legally binding when no employment § 213A

          4. Affidavits of Support

             1. Sponsor must be over 18, US Citizen or LPR, and domiciled in the US

             2. Ended practice of family-sponsored immigration by US Citizens domiciled abroad

             3. Income must be 125% of poverty level

             4. Mandatory for immediate relative and family-sponsored petitions § 212(a)(4)(C)

          5. WAIVER OF PUBLIC CHARGE GROUND: 1) If give public charge bond: § 213; 2) Sponsor promises to indemnify the US or governmental unit in which beneficiary becomes public charge

   13. Public Health and Morals

       1. Physical or Mental disorderly is only a basis for exclusion if associated behavior posses a specific threat § 212(a)(1)(A)(iii)

       2. Discretionary Waivers are possible § 212(g)(3)

       3. Drug Addicts and Abusers are inadmissible § 212(a)(1)(A)(iv)

       4. AIDS Issue: Then in 2010 HHS removed as communicable disease of public health significance: No longer inadmissibility grounds under § 212(a)(1)(A)(i): HIV testing NO longer required

   14. Public Morality

       1. Polygamist aliens only excluded now if coming to US to practice polygamy § 212(a)(10)(A)

       2. Involvement in prostitution or other commercialized vice still inadmissible § 212(a)(2)(D)

3. Admission Procedure

   1. Four Modern Hurdles for Admission

      1. Labor Certification required for 2^nd and 3^rd preference employment-based immigrants and SOME non-immigrants § 212(a)(5)(A)

      2. Visa Petition filed with USCSI for some statutes: To establish beneficiary meets category requirements

      3. Getting a Visa: Application at Consulate Abroad: After Visa petition is approved Applicant must prove that he/she meets category requirements AND doesn’t fit into any inadmissibility ground

      4. Actual Admission to US

         1. Formal application for admission at port of entry

         2. Visa is essential but it doesn’t guarantee admission 212(a)(7): Can be denied at port of entry

         3. CBP Officer can “double-check” and reexamine to see if there are any inadmissibility grounds

   2. Visa Petitions

      1. Parties: Filler = Petitioner: Alien on whose behalf filed = Beneficiary

      2. Forms: Family Sponsored = I-130; Employment-Sponsor = I-140

      3. Self-Petitions

         1. Some 1^st Preference employment can self-petition § 204(a)(1)(E)

         2. Battered Spouse Waiver – § 204(a)(1): Violence Against Woman Act (VAWA)

            1. Battered or subject to extreme cruelty by citizen or LPR spouses; Also available for alien children

            2. Issue No protection from removal on ground of present without admission

            3. Conditional LPR/Alien must risk removal

            4. Good moral character requirement has discretionary waiver where disqualifying behavior linked to original violence

         3. Victims of Trafficking and Violence Prevention Act of 2000 (U-Visa): Non-immigrant visa for some...