IMMIGRATION BASICS Chay Sengkhounmany, Esq. February 2015 WHO IS A U.S. CITIZEN? Ryan Gosling Ryan Gosling is a Canadian citizen born in London, Ontario. WHO IS A U.S. CITIZEN? Marc Anthony Singer Marc Anthony performed God Bless America at the 2013 MLB All-Star game. Some fans
were upset that a Mexican was chosen to sing the patriotic song. Marc Anthony was born and raised in New York. WHO IS A U.S. CITIZEN? Natalie Portman She was born Natalie Herslag in Jerusalem, Israel. Her mother is a U.S. citizen and her father is an Israeli citizen. She has dual citizenship from
the United States and Israel. WHO IS A U.S. CITIZEN? Keanu Reeves Keanu Reeves was born in Beirut, Lebanon in 1964, the son of English-born mother and American-born father. Reeves is a U.S. citizen through his American father and also holds Canadian citizenship by naturalization; he grew up as a Canadian and identifies as such. He is
also entitled to British citizenship through his English mother. U.S. CITIZENS AND NONCITIZENS USCs cant be excluded or deported/removed from the United States All persons who are not U.S. citizens are noncitizens Non-citizens can be refused admission to or deported from the U.S. Categories include: Lawful permanent residents Temporary visa holders (diplomats, tourists, students, athletes, performers, temporary
workers, etc.) Persons in the U.S. by administrative grace, including asylees and refugees Persons in the U.S. without authorization U.S. CITIZENSHIP HOW ACQUIRED By birth in the U. S. By naturalization Automatically acquired by statute At birth - by birth abroad to U.S. parent or parents Derivative, during childhood upon naturalization of parent(s)
A simple way to take measure of a country is to look at how many want in. And how many want out. Tony Blair U.S. POPULATION 314,159,265 2:29 p.m. on Tuesday, August 14, 2012 Pi () times 100 million) times 100 million U.S. Census Bureau's Population Clock NATION OF IMMIGRANTS
Statue of Liberty and Ellis Island MIGRATION NUMBERS 1905 1,026,499 Legal Permanent Residents 2003 703,542 Legal Permanent Residents 180,500,000 Nonimmigrant admissions
2011 1,062,040 Legal Permanent Residents 158,500,000 Nonimmigrant admissions NATION OF IMMIGRANTS EXCLUDING UNDESIRABLES GROUNDS OF INADMISSIBILITY 1. 2.
3. 4. 5. 6. 7. 8. 9. Health condition that poses a threat to others, e.g. TB Criminal reasons National security reasons Foreign policy reasons Public charge Present without admission or parole Fraud or misrepresentation False claim to U.S. citizenship Smugglers
GROUNDS OF INADMISSIBILITY 10. Failure to possess valid visa or entry document 11. Failure to possess passport that is valid for a minimum of six months Previously removed from the United States, inadmissible for ten years Unlawfully present for more than 180 days and then departed from the United States, inadmissible for three years 12.
13. 14. 15. 16. Unlawfully present for more than a year or ordered removed, inadmissible for ten years Practicing polygamists International child abductors Sources of Laws establish an uniform Rule of Naturalization Key Players
Appeals go to the Federal Court of Appeals or U.S. District Court DEFINITIONS Noncitizen
US Citizen Immigrant Nonimmigrant Lawful Permanent Resident Undocumented Naturalization Visa Inadmissibility Removal Removal Proceedings (Formerly Called Exclusion and Deportation) THE VISA ALPHABET
A visas: Ambassadors and Diplomats B visas: Visitors for Business or Pleasure E visas: Traders and Investors F visas: Students
G visas: International Orgs and NATO H visas: Temporary Employees I visas: Journalists and Media Workers J visas: Exchange Visitors K visas: Fiance(e)s L visas: Intercompany Transferees M visas: Non-academic Students O visas: Extraordinary Ability Superstars Q visas: International Cultural Exchange Visitor R visas: Religious Workers S visas: Informant/Snitch visas T visas: Trafficking victims U visas: Crime victims VAWA: Domestic Violence victims. VISA WAIVER PROGRAM
Citizens of 38 countries (as of 2014) do not need visa if Visit the U.S. for tourism & certain business activities for no more than 90 day Trade-off Extensions of stay are available only in the most extreme circumstances Waives the right to a removal hearing before an Immigration Court If had a U.S. visa before or previously traveled to the United States under the VWP, must have complied with the conditions of previous admission Must not have previously been found ineligible for a U.S. visa
Apply through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier TWO-STEP PROCESS OF GETTING GREEN CARD Step 1 Qualifying Relationship or Circumstances Step 2 Applying for green card (Legal Permanent Residence) Petition to show you have a qualifying relationship
Must meet the requirements to get a green card Get priority date Adjustment of Status (Inside U.S.) Consular Processing (Outside U.S.) Many undocumented people often have a qualifying relationship and are able to get an approval for this step but cannot get approval for step 2 Must show admissible
Must not have Committed certain immigration violations Committed certain crimes Certain contagious diseases Problem of 3 or 10 year bar PRIMARY PATH TO LPR STATUS
Family-based Immigration Employment-based Immigration Refugee/Asylee Special Legislation Diversity Lottery Other highly specialized visas Religious workers, investors, individuals with extraordinary abilities, etc. SPECIAL OPTIONS Special Immigrant Juveniles Conditional Residence Waiver
VAWA Self-petitioning & Cancellation U & T Visas Self-petitioning for parents of US citizens IMMIGRATION ENFORCEMENT
Only enough resources to remove 400,000 people per year (438,000 removed in 2013) Removal Priorities 1. 2. 3. Threats to national security, border security, and public safety Misdemeanants and new immigration violators Those who have been issued a final order of removal2 on or after January 1, 2014
Prosecutorial Discretion and Deferred Action Status for Childhood Arrivals (DACA) TYPES OF REMOVAL PROCEEDINGS Exclusion/Deportation Removal ALL Proceedings commenced after April 1, 1997
Expedited Removal Proceedings commenced before April 1, 1997 (Order to Show Cause) Arriving aliens subject to expedited removal (port of entry or by sea) and Undocumented Immigrants w/i 100 Miles of a U.S. Land Border. No hearing before an Immigration Judge Still entitled to credible fear interview or reasonable fear if previously removed. No Appeal, 5 year ban on
return. Reinstatement of Removal similar to expedited removal but those who have reentered illegally after having been removed under a prior order of deportation, exclusion, or removal. RIGHTS OF DETAINED NONCITIZENS Speak to an unappointed attorney Hearing with Immigration Judge
Unappointed attorney at hearing and interview Request release from detention Interpreter at Merits Hearing HOW DO YOU END UP IN PROCEEDINGS
Detained at the Border by CBP Due to Criminal Prosecution ICE Detainers, 287(g), Secure Communities Through ICE Raids (home & workplace) Through USCIS applications (Biometrics) Absconder List/Fugitive Operations DETENTION
If person (over 18) is detained check: https://locator.ice.gov/odls/homePage.do Detainees are often moved Bond: DHS/ICE can set bond Request a bond hearing/bond redetermination hearing in front of an immigration judge who can order persons release on payment of the bond or lower the bond amount. Bonds are set at a minimum of $1500. Immigration Bondsman
Mandatory Detention Arriving aliens are ineligible for bond For LPR: 2 CIMTs, 1 CIMT w/1yr sentence within 5 years of admission, Agg Fel, Controlled substance offense, firearms offense. For EWI: 1 CIMT (subject to petty offense exception), Controlled substance offense, drug trafficking offense, 2 or + offenses with aggregate of 5 yrs sentence, Prostitution, Domestic violation or violation of protection order
IMMIGRATION COURT Executive Office of Immigration Review (EOIR) 60 Courts including Hawaii, Puerto Rico, & Mariana Islands Notice to Appear filing of NTA vests jurisdiction with the Immigration Court
Review NTA for errors Mentally incompetent and minors under the age of 14, NTA served on near relative, guardian, or friend Limited Rules of Evidence IMMIGRATION COURT PROCESS REMOVABILITY INA 237 Clear and convincing evidence that respondent is removable Govts burden Motion
to Terminate If a motion to terminate is granted, dismissal of the matter is generally without prejudice and the agency may file the same charges at a later time INADMISSIBILITY Based in INA 212 Govts burden to prove alienage (noncitizenship), Burden shifts to the respondent Clearly and beyond doubt entitled to be
admitted and is not inadmissible May include LPRs who are classified as applicants for admission CRIMES Grounds of inadmissibility and removability Effect good moral character Can trigger mandatory detention
Aggravated felonies Super-penalties Bar to most forms of immigration relief 20 year federal prison term for illegal reentry Possible deportation without a removal hearing CONVICTION - INA 101(A)(48)(A)
A formal judgment of guilt of the alien entered by a court OR, If adjudication of guilt has been withheld, (1) Where: a judge/jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, AND (ii) the judge has ordered some form of punishment, penalty, or restraint on the aliens liberty to be impose Juvenile adjudications are NOT convictions Pre-trial diversions and deferred prosecution are generally not conviction for immigration purposes CRIMES INVOLVING MORAL TURPITUDE (CIMT)
Crimes that are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general Crimes that are CIMT An intent to steal or defraud is an element; Bodily harm is caused or threatened, by an intentional or willful act Serious bodily harm is caused or threatened by a reckless act Sex offenses Petty Offense Exception one conviction with imprisonment
term of less than 6 months and carries a maximum possible sentence of one year or less Youthful Offender Exception: crimes committed under the age of 18 and has been more than 5 years since commission and release from confinement AGGRAVATED FELONIES Drug crimes, any offenses relating to drug or firearms trafficking, including possession with intent to distribute
Rape Sexual Abuse of a Minor or child pornography Murder or attempted murder Felony alien smuggling (unless it was your first and you were helping only your husband, wife, child or parent) Fraud or income tax evasion, if the victim lost over $10,000 Money laundering (over $10,000)
AGGRAVATED FELONIES Sentence of 1 year or more of jail time (it does not matter if your sentence was suspended and you never spent any time in jail): Theft (including receipt of stolen property) Burglary A crime of violence (including anything with a risk that force will be used against a person or property, even if no force was used) Document fraud (including possessing, using, or making false papers, unless it was your first time and you did it only to help your husband, wife, child, or parent) Obstruction of justice, perjury, bribing a witness (this does not include obstructing an officer) Includes attempt or conspiracy to commit any of these
crimes QUESTIONS? Chay Sengkhounmany CINA of Nashville, PC 2500 21st Avenue South, Suite 101 Nashville, TN 37212 P: 615-324-7757 F: 615-324-7758 [email protected]
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