SETON HALL UNIVERSITY SCHOOL OF LAW
Immigration and Naturalization Professor David Thronson
Final Examination Spring 1999
QUESTION 1 (35% of grade)
A, a national of Costa Rica, was admitted to the United States with a tourist visa in January 1998 and his authorized period of stay expired in July 1998. A was formerly married but his wife died several years ago. He has two children from this previous marriage. A's youngest child, B, is twelve years old and she lives in Costa Rica with a relative. A's eldest child, C, is 17 years old and she joined A in New Jersey five months ago after entering the United States without inspection. Yesterday A married D, a Mexican national who has been a legal permanent resident of the United States since 1993. D directs a computer research program at a local college.
C just made the surprise announcement that she is engaged to marry E, an Indian national with a valid student visa who is studying in the United States. E will complete his doctorate in computer science later this month. D was in the process of selecting between several candidates for a job in her program, but now she would like to offer the position to E. The position involves some teaching in addition to research and D believes that E is better qualified than the other candidates for this aspect of the job. E has no other job offers and would accept an offer from D.
With the exception of E, none of these people have ever committed any crimes. E has been convicted twice in the last three years of driving while intoxicated. The maximum possible sentence for each conviction was six months imprisonment, but E was sentenced to only fines and license suspensions.
Develop and describe a strategy to obtain permanent legal immigration status in the United States for A, B, C and E, assuming full cooperation from D and the college. If you need information which is not provided, state what information you need and describe how that information factors into your analysis. You may wish to refer to the May 1999 Visa Bulletin provided on the next page of this examination.
MAY 1999 VISA BULLETIN (for use in Question 1)
ability Areas CHINA-
Except Those mainland
PREFERENCES Listed born INDIA MEXICO PHILIPPINES
1st 01JAN98 01JAN98 01JAN98 01AUG93 01AUG87
2A 01NOV94 01NOV94 01NOV94 01OCT93 01NOV94
2B 15JUN92 15JUN92 15JUN92 22JUL91 15JUN92
3rd 22JUL95 22JUL95 22JUL95 01OCT90 08JUN87
4th 08JUL88 08JUL88 01AUG86 08MAR88 08DEC78
ability Areas CHINA-
Except Those mainland
PREFERENCES Listed born INDIA MEXICO PHILIPPINES
1st C 15APR98 C C C
2nd C 01FEB97 22NOV97 C C
3rd C 15APR95 01APR96 C C
Other 15SEP92 15SEP92 15SEP92 15SEP92 15SEP92
4th C C C C C
Certain C C C C C
5th C 01SEP98 C C C
Targeted Employ- C 01SEP98 C C C
QUESTION 2 (30% of grade)
Aysha, age 19 and unmarried, lived in a village on the outskirts of Kabul, Afghanistan with her parents until last year. Since 1996, her village has been under the control of the Taliban, an ultraconservative Islamic movement which has imposed its own strict interpretation of Islam. Edicts governing social behavior are enforced by the Ministry for the Enforcement of Virtue and Suppression of Vice through "vigilance squads" of Taliban militia. The Taliban's ad hoc Islamic courts impose their interpretation of Islamic punishments, such as public execution by decapitation for murder, 100 lashes or public execution by stoning for adultery, and amputations of one hand and one foot for theft. For other infractions, Taliban militia often decide right or wrong and impose punishments such as beatings on the spot. Procedural protections in trials before the ad hoc Islamic courts are few, if any, and trials often last no more than a few minutes. The vigilance squads particularly target women, who are not allowed to move outside their homes unless completely covered in a head-to-toe garment called a burqa and accompanied by a male relative. Those caught violating these requirements are beaten.
Aysha is a devout follower of Islam and made every attempt to conform her life to the strict rules enforced by the Taliban. Aysha has never been politically active, has never joined any groups, and has never committed any crimes. Last year, an uncle raped Aysha while her parents were away. Aysha did not tell anyone what had happened because of the strong stigma attached to rape and her fear that she would be ostracized by her family. Aysha became pregnant. As her pregnancy began to show, villagers spread rumors that Aysha had been in an adulterous affair. After a warning from a neighbor that a vigilance squad was coming to arrest her for adultery, Aysha fled her home and eventually made her way to a refugee camp in Pakistan, where she gave birth to a son. Aysha then obtained false documents for herself and her son and they traveled to the United States.
Upon arrival at Newark Airport, Aysha immediately identified herself and requested asylum. Aysha is now detained at the Elizabeth Detention Facility awaiting a hearing. She conceded removability under INA § 212(a)(7), but she requested asylum, withholding of removal and protection under Article 3 of the Convention Against Torture.
Develop and analyze Aysha's arguments for asylum and withholding of removal. Discuss the strengths and weaknesses of her case. Please limit your answer to asylum and withholding of removal. Do not discuss protection under the Convention Against Torture.
QUESTION I (1/3)
Arnoldo was admitted for lawful permanent residence in 1987. For six years, he lived an uneventful life with his wife and small daughter. However, in 1993, when a fire left his wife and daughter dead, the fabric of his life began to unravel. First, two months after the loss of his family, Arnoldo was involved in a terrible automobile accident in which the passenger in another care was killed. As a result of this accident, Arnoldo pled guilty to involuntary manslaughter. The judge sentenced him to 4 months of community service and required him to attend grief counseling for the same period.
Then, in January 1994, Arnoldo was arrested for shoplifting. He was convicted, and served three months of his nine month sentence (the maximum for a first offense) before being released on parole.
In December 1994, Arnoldo took a trip to his native Mexico for three weeks. He intended to visit family and friends, and to try to clear his head after his recent misfortune. He also hoped to convince his sister to join him in the United States, even though he knew she had no way to enter and remain legally.
In January 1995, Arnoldo returned to the United States alone. His sister had declined Arnoldo's invitation to join him. One week after he returned to the United States, Arnoldo was diagnosed with tuberculosis, which he contracted during his trip to Mexico. Because he fell ill, he was unable to work for several weeks and was laid off from his job. After using up his savings, he was forced to apply for food stamps in May 1995.
Deeply depressed, Arnoldo takes a walk in the woods later that week. He brings along some marijuana which a friend gave him. A police officer smells the burning cannabis and arrests him. Arnoldo's apartment is searched, and altogether 25 grams of marijuana are found. He is convicted of possession and sentenced to 6 months imprisonment.
Is Arnoldo excludable? Is he deportable? What defenses should he mount? Explain.
QUESTION II (1/3)
Laila Azar, a native of Syria, has for years been a prominent leader of the Islamic Feminist Party. The IFP is a religious organization which nevertheless seeks an end to restrictions on women in national public life. Last fall, the home of Laila and her husband was sprayed by bullets in what Laila believes was a government effort to dissuade her from further political participation. Laila and her husband began to fear for her safety, and decided that she should try to join her father in the United States.
Laila's father, now a U.S. citizen, had recently filed a third preference family-based visa petition on her behalf, but the category is backlogged, and she will be ineligible for immigration until sometime in 1998. Hoping to leave the country at least temporarily, Laila sought a B-1 visa to the United States in January, 1996, but the American Consulate denied the visa on grounds that she lacked the requisite intent to return to Syria.
After subsequently receiving a series of death threats by phone, Laila determined that she had to leave Syria as soon as possible. In March 1996, she successfully applied for a visitor's visa to Canada, and shortly thereafter, flew to Toronto. The day after her arrival, a friend of Laila's drove her to a remote area of the U.S.-Canadian border. Laila crossed the border by foot without encountering any officials. On the U.S. side, she walked for half an hour seeking a public phone booth. She found herself walking along the side of a major highway, and was stopped by a police officer who asked if she needed help. In the ensuing conversation, the officer (properly) asked for her identification. Laila showed him her passport but stated that she had no visa because she was a political refugee intending to apply for political asylum.
The police officer contacted the I.N.S., and Laila was immediately arrested and placed in exclusion proceedings. She was charged with terrorist activity under a newly amended exclusion provision that had been signed into law earlier that week. INA Sec. 212(a)(3)(B)(I) had been amended to include the following sentence:
Any alien who is an officer, official, representative, or spokesman of any Islamic-identified political organization is considered, for purposes of this chapter, to be engaged in terrorist activity.
There is no analogous deportation provision.
Your firm has been hired by Laila Azar's father to assist Laila in her exclusion proceedings, which are scheduled to begin in this summer. One of the firm's partners asks you, a new associate, to write a memorandum in which you set forth the issues in the case, outline the challenges to exclusion--both statutory and constitutional--that can be raised in the proceedings, and assess both the likelihood of success of each argument and the consequences of failure.
QUESTION I (40%)
Devorah Levi, a 27 year-old Israeli national, entered this country as a lawful permanent resident in 1991 under the 4th family-based preference. A photographer, she worked for a weekly news magazine and earned a modest but comfortable living. In 1997, however, she suffered a terrible accident: Her gas stove exploded as she was preparing a meal, and she was seriously injured. Her eyes were badly affected: she lost vision in one of her eyes entirely, and in the other suffered substantial corneal damage. After a period of recuperation, she retained enough vision to get around unassisted, but she could no longer take photographs. The news magazine reluctantly let her go.
Devorah lived on unemployment insurance for several months. But she was deeply depressed. She couldn't take photographs; she felt isolated without her job; and she believed it would be hard for her to make new friends because her face had been badly scarred in the accident. Devorah's sister, who had petitioned for Devorah to come to the United States, had recently moved to Paris with her husband, leaving Devorah without relatives here. She spent more and more time alone in her studio apartment.
When her unemployment insurance ran out in April of 1998, Devorah filed for state disability benefits. Though she was eligible, the amount she was granted was not enough to cover her rent and to buy the food and medicines she required. One day at the grocery store, Devorah was feeling desperate and placed several cans of soup in her large tote bag without paying for them. As she was leaving the store, a security guard grabbed her arm and pulled her back inside. The police were contacted, she was arrested, and charged with petty larceny. Before a sympathetic judge, she told her story and pleaded guilty to one count of petty larceny. Though the crime was punishable by up to nine months of confinement, she was sentenced to six months imprisonment, and the judge suspended the sentence.
On her way home from the courthouse, Devorah stopped in the park to admire the apple blossoms. She sat down on a bench and soon found herself in conversation with a young man who was also out for an afternoon walk. His name was Ahmed, and he was a Palestinian from the West Bank. They had much in common, they learned; both had been raised in families in favor of a peaceful settlement between Israel and the Palestinians; both were tired of extremists on both sides and wished for friendship between the two peoples. In fact, both Ahmed's father and Devorah's mother had been actively involved in drafting the 1993 peace accord between the Israelis and Palestinians. Ahmed was a student at the state university here; he was studying art and photography. Devorah and Ahmed met several times after that afternoon. One thing led to another, and within weeks they had declared their love for one another.
Several weeks into their relationship, Ahmed received in the mail a notice to appear for a removal proceeding. Ahmed had entered the country in September, 1996 on a student visa and had overstayed the one year's stay originally granted to him. He was not concerned about the hearing, however, because a friend assured him that he would have the opportunity to ask the immigration judge for an extension of time on his visa. To his surprise, when he appeared at the hearing, he was ordered removed, and granted two weeks of voluntary departure.
After his hearing, Ahmed went to Devorah's apartment and told her what had happened. Devorah was devastated and suggested that they get married. She was sure that if Ahmed were married to a legal resident, he couldn't be forced to leave the country. They were married by a Justice of the Peace. The following day, Devorah and Ahmed came to your law office, intending to retain you to file the necessary papers so that Ahmed could remain in the United States. However, you informed them that things were not as simple as that, and that their marriage did not immediately resolve Ahmed's immigration problems.
What precisely did you tell the couple? Why didn't their marriage resolve Ahmed's current immigration difficulties?
After their interview with you, Devorah and Ahmed returned to her apartment. After lengthy discussions-- and not a few tears--they decided that Ahmed would return home to the West Bank, and that Devorah would follow within two months after completing a form of treatment she was undergoing for her eyes. They hoped they could eventually settle in the United States, but decided that in the interim, they would live together in Israel.
Four weeks after Ahmed returned home, Yassir Arafat's government was overturned in a coup by the extremist group Hammas. Ahmed's father disappeared on his way home from work soon thereafter; he was last seen in the company of Hammas security guards. Ahmed's mother begged Ahmed to leave the country.
Ahmed traveled to Canada on a tourist visa. From there he called Devorah by phone and asked for her help. Two days later, she flew to Toronto to meet Ahmed. They rented a car, packed Ahmed into a large suitcase placed in the car's trunk, and crossed the border into the United States. Twenty minutes later, Devorah pulled over into what appeared to be a secluded rest stop off the road to allow Ahmed to get out of the trunk. At precisely the moment he emerged, a highway patrol car passed by. The policeman stopped and questioned the young couple. Terrified, they told him what had happened.
Devorah and Ahmed were turned over to the INS. Although Ahmed was held incommunicado, Devorah was given permission to call you. After you hang up with her, you track down Ahmed and learn that he is going to be processed in expedited removal proceedings in which he will not be entitled to the assistance of counsel.
On what basis is the government likely to proceed in Devorah and Ahmed's cases? As their lawyer, how will you seek to defend them? What is the likely outcome in each case?
QUESTION II (30%)
In July 1998, the United States goes to war with Iraq after learning that the Iraqi government is responsible for an outbreak of the deadly thorax disease in Chicago, caused by the explosion of a bomb loaded with microbes containing the disease. Soon after the first missiles are fired, President Clinton issues an Executive Order 10001, providing for a ban on the admission of all Iraqi citizens to the United States. The order is to remain in effect for one year or until Congress passes legislation to replace it. Upon signing the order, the President states that the prohibition is necessary to ensure that the government of Iraq does not use its citizens as conduits for further biological warfare in this country. The following week, the President issues Executive Order 10002, providing that all male Iraqi nationals over the age of 18 who are currently present in the United States are to be detained in immigration detention facilities until further notice (exceptions to be made in cases of ill health). In a statement accompanying the Order, the President indicates that this measure is also designed to ensure that Sadaam Hussein does not use Iraqi nationals as conduits for the waging of biological warfare in the United States
You are a Staff Attorney with the Center For International Cooperation, a nonprofit organization in Washington, D.C.. Your supervising attorney tells you that she has two potential plaintiffs for a lawsuit challenging the Executive Orders. The first is Jack Masters, whose wife, Leila Fayad, a lawful permanent resident from Iraq has been in the highlands of Peru studying the Quiche language for her doctoral dissertation during the past eight months. She is due back next month, but under the Executive Order, she will not be permitted to return. The other is Jeffrey Hassan, the nine-year old U.S.-born son of Iraqi immigrants. Jeffrey's mother has recently died, and his father, a lawful permanent resident, is about to be taken into custody. Jeffrey has no other relatives in this country.
Your supervising attorney asks you to write a memorandum analyzing the potential strengths and weaknesses of a possible challenge to the orders, and asking you to make a recommendation as to whether the Center should go forward with an effort enjoin their enforcement.
SHORT ANSWERS (10 points total; 1 point each)
Please briefly define each of the following terms as you have come to understand them through your study of immigration law.
1. Schedule A
2.Adjustment of status
4.Affidavit of Support
5. Voluntary Departure
9. Follow to join
10. Firm resettlement
I. ESSAYS (40 points total)
A. (15 points)
Marcel Junot, a 19-year-old carpenter from Martinique, left his country with a boatload of other Martiniquans on February 27, 1999. Somehow, Marcel's boat was able to evade detection by the Coast Guard on the high seas, and several days after it left port, it arrived a few miles south of Miami, just after midnight. Marcel and his compatriots were neither sighted nor apprehended as they waded to shore and walked toward the nearby highway.
Marcel hitchhiked to Philadelphia, where his mother, Dianne has lived as an LPR for eight years. Shortly after arriving in Philadelphia, Marcel went out with some friends who were involved in a car jacking incident. He later tells you he "went along for the ride" but was not involved in the actual theft. Nevertheless, he was arrested along with the rest of the group, and was charged with grand theft. He pleaded guilty, and was sentenced to a one-year suspended sentence. The judge tells Marcel that the INS will be advised of this incident.
Marcel and Dianne come to your office to see if you can help Marcel. During the interview, you learn that this is not Marcel's first visit to the United States. Marcel arrived here in January 1997 on a visitor's visa, and was authorized to remain for six months. He did not leave until March, 1998, when he returned home for a family wedding.
Can you help Marcel? Describe his status and prospects under the immigration laws.
II B. 15 points
Lung-Chu (Lawrence) Chen, a Chinese national, arrived in the United States in 1996 on an F-1 visa to begin graduate studies at Columbia University. Early during the first year of his doctoral program, he met Nancy Yuan through a mutual friend. Nancy, a U.S.-born Chinese-American student, was finishing up her dissertation, also at Columbia. After five months of friendship, the couple married in January, 1998. Nancy filed a visa petition for Lawrence in February 1997, and in July of that year, he adjusted to lawful permanent resident status on a conditional basis.
For the first year and a half of their marriage, the couple lived together in Manhattan. During that period, Nancy was on the job market for a professorship in Political Science. She was unable to land a post on the East Coast, but in the Spring of 1998, she was offered an assistant professorship at the University of California at Irvine, beginning in September, which she wanted to accept. The job offer prompted Nancy and Lawrence to take stock of their relationship one evening over dinner. They acknowledged that while they were fond of one another, the flames of passion had grown dim. Lawrence was acclimating to the United States and wanted to continue his Ph.D. program at Columbia; Nancy, for her part, said she wished to begin this new phase of her life unencumbered. They agreed to separate.
Despite their separation, Nancy and Lawrence talked by phone twice a week. He told her of his frustrations in picking a dissertation topic; she told him of her new colleagues and students, her fear of earthquakes, and, within three months, of the new romance in her life with Martin Wo, another professor at the University.
In May of 1999, Lawrence called Nancy to tell her that they had received a notice from the Immigration and Naturalization Service advising them that it was nearly time to file their petition for removal of conditional status. Nancy agreed to return to New York to fill out the necessary papers. She also told Lawrence that she was pregnant.
In July 1999, Nancy returned to New York for a two week-long visit, where she stayed in her old apartment with Lawrence. They filed the necessary papers, and Lawrence's conditional status was removed. During dinner on the last night of her visit, Lawrence suggested to Nancy that perhaps it might make sense for them to get divorced given that she and Martin had begun to live together and were planning on having the baby. She pointed out that it was not strictly necessary since she and Martin were not planning on marrying, but that if Lawrence wanted, she could initiate the proceedings.
After Nancy returned to California, Lawrence decided to take a trip to visit his family--his first since he had come to the United States. Within days after his return to Beijing, he ran into his former girlfriend, Pearl Yu, with whom he had lived for three years during college and the two rekindled their romance.Within a few weeks, they decided to marry. Lawrence returned to New York to continue his studies, and Pearl obtained a tourist visa, and joined him in NY in December 1999; the visa expires this June. She has moved into Lawrence's apartment, and spends her days at the Metropolitan Museum of Art.
You are an associate in a lawfirm which specializes in immigration law. Lawrence and Pearl come to seek your advice on May 4, 2000. They tell you that they plan to marry as soon as Lawrence's divorce comes through, which they expect will happen within the next month. Lawrence wishes to petition for Pearl so that she can become a lawful permanent resident, and wonders whether there are any obstacles to his doing so. Write a brief memorandum analyzing Lawrence and Pearl's status and prospects under the immigration laws.
II C. 10 points
Martha Stott, a 52 year-old British national, has been a lawful permanent resident alien since 1989. In 1997 she was convicted of forgery, after passing a bad check for $1500, and she served fifteen months in prison. While incarcerated, Martha converted to Islam. Soon after her release, she left on a ten-month pilgrimage to the Middle East, during which she contracted HIV. She has just returned from abroad, and has been placed in removal proceedings. She has retained you to be her lawyer. On what basis is the INS seeking to remove Martha, how will you defend her, and what is the likely outcome?
UNIVERSITY OF MARYLAND
SCHOOL OF LAW
Prof. Vaughns Friday, May 7, 1999
Day Division1:30 p.m.-5:00 p.m.
[Suggested time - 45 minutes TOTAL for both questions]
Alien A and Alien B are sister and brother who wanted to immigrate to the United States, but lacked the requisite qualifying credentials and valid documentation to enter lawfully. So they hatched a plan to enter this country without documentation via two different routes to determine which one would prove to be more successful. Alien A elected to attempt entry at a designated port-of-entry; Alien B decided to seek entry at an unofficial border crossing.
When Alien A sought to enter, an immigration officer stopped and detained her. The officer then determined that she did not possess a valid, unexpired, immigrant visa and therefore interviewed her to determine whether she had a credible fear of persecution if returned to her homeland. Alien A indicated that she did not have such a fear. She then requested both a lawyer and a hearing; she was provided with neither. That same day, Alien A was summarily excluded and ordered removed. Alien A asked the officer if she could appeal his decision; he told her "no." Imagine she contacted you before her removal; and having read about constitutional rights in this country, she believed her rights were violated. Also, she was annoyed to learn that her brother would most likely escape a similar fate if arrested in the interior of the country because the Attorney General treats such aliens differently. She thinks this is another indication that her rights were violated. Assume hereafter that you are duly licensed to practice law.
Alien B entered the U.S. surreptitiously at a southwest border crossing and managed to escape undetected into the interior of the country. Shortly after settling down in an immigrant-friendly community, Alien B heard of his sister's fate. Alien B quickly found unauthorized employment in the service industry; he also found a girlfriend who is a United States citizen. Nearly a year and a half or more later, Alien B came across an immigration article about "expedited removal" and read that according to a congressional conference report the decision to adopt a summary exclusion removal system was prompted by a congressional finding that "thousands of aliens arrive in the United States at airports each year without valid documents and attempt to illegally enter the U.S." [H.R. Rep. No. 104-469, pt.1, at 158 (1996)]. Having selected a different route for U.S. entry, Alien B considered himself the lucky sibling. But the next day his luck changed. The INS raided the restaurant where Alien B worked and took him into custody after he had answered affirmatively when asked if he was an alien and could produce no papers. He was then placed in expedited removal proceedings and denied both a lawyer and a hearing. He requested and was likewise denied access to a phone to call his girlfriend and denied release from detention on bond. He was ordered removed and remained incarcerated pending his removal (deportation). While incarcerated, he filed a pro se petition for writ of habeas corpus relief challenging the INS's actions as violations of his first, fourth, fifth, and sixth amendment constitutional rights. He also challenged the INS's statutory authority to place him in summary exclusion proceedings because, unlike his sister, he had not entered via an airport. Assume you are the law clerk to the federal judge assigned this case for a hearing on the government's motion to dismiss.
Assume your research disclosed that prior to the INS raid, the Attorney General had issued a regulation subjecting all aliens who cannot establish at least two years of continuous physical presence in the United States to expedited removal proceedings stating that it was in the interest of effective enforcement of immigration laws. The regulation further stated that for aliens who enter without inspection, the burden of proof rests with the alien to affirmatively show that he or she has the required continuous physical presence. You note that the administrative record accompanying the government's motion does not reflect whether Alien B was given such an opportunity.
[Suggested time - 2 hours TOTAL for all questions]
Assume that Alien A from Part A had attempted to enter the United States with false documentation. Alien A was then arrested and charged with fraudulent entry pursuant to INA § 212(a)(6)(C)(i). Thereafter, Alien A was charged with making a false statement to an INS official in violation of INA § 275(a)(3). Alien A eventually pled guilty to the section 275(a) charge in a federal court and waived her right to appeal as part of a plea agreement. Alien A was sentenced to six months in prison. After serving her sentence, Alien A was returned to INS custody. Following her return, an immigration officer interviewed her and then had her sign an order of expedited removal issued pursuant to INA § 235(b)(1). Before signing the removal form, she argued that she wanted to withdraw her guilty plea; the officer merely shrugged his shoulders sympathetically. Prior to her deportation, Alien A encountered you at the detention center while engaged in pro bono activities and asked if she was being railroaded. Specifically, she said that no judge or jury had convicted her of anything; that she had served her sentence and felt that her deportation was tantamount to double jeopardy, i.e., that she was charged and punished twice for the same offense.
Assume that Alien B from Part A is arrested after the INS raid and finds himself placed in regular (not expedited) removal proceedings then released on bond. He comes to you for advice on how to beat deportation. He tells you about his girlfriend. He also tells you she is pregnant; that he is her sole support and that he is willing to marry her if it will help him avoid deportation. What's your advice?
Assume that Alien B obtained lawful permanent resident status, but ran afoul of the law. Specifically, the government charged Alien B in a two-count indictment with importation and possession of marijuana. Pursuant to a plea bargain agreement, Alien B pleaded guilty to the possession count, and the government dismissed the importation count. The federal court that took the guilty plea, sentenced Alien B to two years probation. The government subsequently instituted deportation proceedings against Alien B on the sole ground that he had pleaded guilty to the drug charge. Alien B then moved the federal court to vacate, set aside, or withdraw his guilty plea due to ineffective assistance of counsel. Alien B stated in support of this motion that the federal prosecutor had promised that the government would not bring deportation proceedings; and that his public defender did not know that the prosecutor lacked the requisite authority to make such a promise. Assume you are the federal judge hearing this motion.
Assume that shortly after the above plea agreement and sentencing, Alien B received permission from his probation officer to leave the country for two weeks to visit his sick mother. But upon his return, he is stopped and detained then placed in removal proceedings and charged under INA § 212(a)(2)(C). He contacted you about representing him in this matter and asked if he was properly (a) charged, (b) detained, and (c) whether he could benefit from the Fleuti doctrine.
Assume that Alien B did not obtain lawful permanent resident status. Nonetheless, Alien B is an ambitious employee at the restaurant where he has worked for several years. He and his boss, the owner, are good friends; both desire that Alien B become the manager and a full partner in a new business venture. Alien B proposed that the restaurant be changed to a culturally authentic establishment under his management. Given his ethnic background, familiarity with the cultural customs and preferred cuisine of those customers who are most likely to frequent such an establishment along with his knowledge of their language, Alien B considered himself an ideal candidate for the job if the published job description fits his qualifications. His employer is willing to sponsor his immigration application if it will lead to a successful outcome. The employer contacted you and asked you to advise Alien B on how to proceed. What's your advice?
Assume that Alien B obtained lawful permanent resident status three years ago. Assume that he wants to bring Alien A, his sister, to the United States. In your interview, you learn that Alien A is not his biological sister. You also learn that Alien B is the legitimate son of C and D. Alien B's mother (C) and father (D) divorced shortly after Alien B's birth. E is the mother of Alien A, who was born out of wedlock. At a time when Alien B was 22 and Alien A was 14, D and E married. Alien A is now 24 and would like to immigrate to the United States if she can do so lawfully. She would also like to visit her brother in the United States from time to time and, if possible, attend law school. Alien B contacts you for advice.
[Suggested time - 15 minutes]
You are a staffer for a maverick Congresswoman (of an unspecified political party) who is pro-immigration. She wants to introduce a bill to amend INA § 240A(b), introduced by the 1996 Act to place greater restrictions on the requirements for permanent relief from deportation applicable to nonpermanent residents and to place a numerical cap on the number of applications that can be granted in any given fiscal year. The Congresswoman would like to see the statutory provisions returned to the more lenient provisions in place prior to the 1996 amendments. Given the recent congressional tendency towards restrictive legislation to discourage illegal immigration and concerns legislators expressed about the Board of Immigration Appeals' recent decision in Matter of O-J-O, [I.D. 3280 (BIA, June 14, 1996)], she knows passage of such a bill is a long-shot. Nonetheless, she thinks it is important enough to at least get this issue on the congressional table, and to start a new public policy debate about the appropriate criteria for obtaining permanent relief from deportation.
Write a short memorandum on (1) the validity of the Congresswoman's proposal, taking into account how the agency is implementing the current relief provisions, (2) the opposing viewpoints she is likely to encounter in shepherding this measure through the House of Representatives, and (3) any suggestions you may have for improving upon her proposal given the factors which led to the more restrictive treatment enacted in 1996.
[Suggested time - 50 minutes TOTAL for both questions]
Alien A left his homeland as a refugee at the age of six and has resided in the United States as a permanent resident since he was eight years old. At age nineteen he was involved in a gang-related shooting and convicted of voluntary manslaughter. After completing his prison sentence some two years later, he was taken into INS custody and the INS initiated removal proceedings against him. An immigration judge ordered him removed, and furthermore found him ineligible for asylum or non-return because of that conviction. Alien A appealed this ruling but the Board of Immigration Appeals affirmed it. The INS has been unable to remove Alien A because, like hundreds of others, A's homeland does not have a repatriation agreement with the United States and, therefore, will not permit his return. During the pendency of the administrative proceedings, Alien A filed two motions to be released on bond. In both instances an immigration judge denied his requests, finding, based solely on the manslaughter conviction that although he was not a flight risk, he was a danger to the community.
Alien A's family is very supportive and, if released, he would be able to assist his handicapped 71-year old father in everyday activities. Alien A also communicates constantly with his younger brother to assure that his brother "does not follow in his footsteps." Also, Alien A's older brother runs his own business and would employ Alien A if released from INS custody. Alien A challenged his continued detention by filing a petition for habeas corpus in the appropriate federal district court. The district court ruled that Alien A's continued detention violated his constitutional rights and released Alien A from INS custody. INS appealed that decision to the court of appeals which affirmed, but on statutory grounds instead.
The court of appeals held that the INS lacked authority under Section 241(a)(6) of the Immigration and Nationality Act ("INA"), to detain a deportable alien for more than a reasonable time beyond the normal ninety day statutory period authorized for removal. According to the INS, after an alien is found removable, the Attorney General is required to remove that alien within ninety days after the removal order becomes administratively final. See INA § 241(a)(1)(A)-[B]. Under the statute, aliens who cannot be removed at the end of ninety days fall into two groups.
Those in the first group must be released subject to supervisory regulations that require them, among other things, to appear regularly before an immigration officer. INA § 241(a)(3). Those in the second group "may be detained beyond the removal period" and, if released, shall be subject to the same supervisory provisions applicable to aliens in the first group. INA § 241(a)(6). INS argued that its authority to "detain beyond the removal period" gives it the authority to detain indefinitely aliens who fall in the second group and who cannot be removed in the reasonably foreseeable future. Legislative history materials tend to support the INS's position. Alien A's conviction placed him in the second group. Alien A argued the opposite that the INS's authority to detain aliens beyond the removal period does not extend to cases in which removal is not likely in the reasonably foreseeable future. The court of appeals agreed with Alien A and concluded that the pertinent statutory provisions on their face do not authorize INS's indefinite detention policy under the circumstances of this case.
[Suggested time - 110 minutes TOTAL for all questions]
Alien A, as described in Part A above, was convicted of a crime that triggered his removal and ineligibility for asylum or non-return under INA § 208 and INA § 241(b)(3) respectively.
Assume that Alien A had been convicted of involuntary manslaughter instead of voluntary manslaughter and received a one-year suspended sentence.
Assume that in addition to the above charge of involuntary manslaughter which contained a finding of reckless conduct, Alien A was also charged with a count of aggravated assault. At the criminal trial on both counts, evidence presented indicated that Alien A had committed the aggravated assault during gang-related activities; the event triggering the involuntary manslaughter charge had occurred the next day in retaliation for the earlier gang-related activities. Alien A was subsequently convicted on both counts and received two suspended one-year sentences for each count.
Assume [for the purpose of this subpart only] that removal proceedings against Alien A were commenced as a result of Alien A's pleading guilty to the aggravated assault and involuntary manslaughter charges (described above) obtained pursuant to a plea bargain agreement. At the immigration hearing, Alien A asked for appointed counsel at government expense because he was indigent and any relief for which he is eligible. The immigration judge denied his request for appointed counsel but entertained the following testimony:
Alien A testified in similar detail about his entry as a refugee and later adjusting to lawful permanent resident as set forth in Part A above. He also testified about helping his elderly father, his younger brother, and his older brother offering him employment as set forth in Part A above. Alien A stated that he does not speak the language of his home country fluently, that no immediate family members remain there and that he has never visited there as well. The government countered that although relations with the government of Alien A's country of birth have not been formalized, the circumstances prompting his family's original flight have changed significantly. The country conditions have stabilized politically and economically although it remains a relatively poor country; no evidence of any serious human rights violations have been reported.
Assume that the plea bargain agreement was made because a federal prosecutor promised Alien A, through his attorney, that the government would not initiate removal proceedings against him. Unfortunately for Alien A, his attorney was unaware of the federal regulation requiring government prosecutors who make such promises to obtain written authorization from the INS. Alien A insists that he would not have entered such an agreement otherwise.
Alien B (a foreign national still living abroad) is interested in attending college and later pursue graduate studies in the United States. She has applied for and been accepted at several colleges and universities but desires to visit some of them first before making her final choice. A few offers of acceptance come with full scholarships and grant funding for the duration of her U.S. stay. She would also like to be able to make her choice then register and attend school without having to return to her residence abroad to obtain a new visa. She calls you (assume you are a newly-admitted member of the Maryland bar) in advance of her U.S. trip and before visiting the U.S. consulate abroad to apply for an appropriate temporary visa. She also indicates that if at all possible, she would like to remain in the United States permanently.
Assume that Alien B enters the U.S. on a temporary educational visa. Subsequently, Alien B obtains part-time work as a one of the wait-staff at a restaurant near the school where she is enrolled. She and her boss, the owner, become good friends; both desire that Alien B be promoted to manager and become a full partner in a new business venture that could expand the restaurant's operations substantially. Alien B proposes that the restaurant be changed to a culturally authentic establishment under her management consistent with the increased numbers of immigrants in the area which the restaurant serves. Given her ethnic background, familiarity with the cultural customs and preferred cuisine of those customers who are most likely to frequent such an establishment, along with her knowledge of their language, Alien B considers herself an ideal candidate if the published job description can be made to fit her unique qualifications. Alien B contacts you (once again) and asks for advice on how to proceed. She informs you that her employer is willing to sponsor her immigration application and will to pay the bill for your services, if it will lead to a successful outcome. What's your advice?
5. What's the most likely avenue(s) you will pursue for immigration benefits? What are the steps and how long will it take? [See attached Visa Office Bulletin.] And are there any obstacles or risks for Alien B, her employer, or you in carrying out their wishes? Explain.
Assume that Alien B obtained lawful permanent resident status three years ago. Assume that she wants to bring Alien C, her sister, to the United States. In your interview, you learn that Alien C is not her biological sister. You also learn that Alien B is the legitimate daughter of D and E. Alien B's mother [D) and father [E] divorced shortly after Alien B's birth. F is the mother of Alien C, who was born out of wedlock. At a time when Alien B was 22 and Alien C was 14, E and F married. Alien C is now 24 and would like to immigrate to the United States if she can do so lawfully. She would also like to visit her sister in the United States from time to time and, if possible, attend law school. Alien B contacts you for advice.
how so? And how long before she can come here as an immigrant? [See attached Visa Office Bulletin.] Explain. Can she enter as a visitor or student in the meantime without risking her chances at permanent U.S. residency? Explain.
[Suggested time - 20 minutes]
You are a staffer for a maverick Congresswoman [of an unspecified political party) who is pro-alien. She has served on the hill all throughout a series of congressional directives that have strengthened the laws against criminal aliens, expanding the crimes for which an alien can be deported and severely limiting eligibility for relief if convicted of certain crimes. She believes that many injustices have resulted from this "take-no-prisoners" approach to dealing with criminal aliens. Also, until 1990, a sentencing judge could stop the INS from using a criminal conviction as a basis for deportation by the issuance of a Judicial Recommendation Against Deportation ("JRAD"). Now she wants to introduce a bill to reinstate the former JRAD provision although she knows passage of such a bill is a long-shot. But for her, it is an issue which is important enough to get on the congressional table and start a new public policy debate about the appropriate criteria for affording criminal aliens relief from deportation.
Write a short memorandum on (1) the validity of the Congresswoman's proposal, taking into account how it should be implemented if reinstated, (2) the opposing viewpoints she is likely to encounter in shepherding this measure through the House of Representatives, and (3) any suggestions you may have for improving upon her proposal given congressional concerns about investing unlimited power in the judiciary in this particular area of immigration law.
UNIVERSITY OF CALIFORNIA
SCHOOL OF LAW
Law 292-Immigration Law and Procedure Wednesday,
Professor James F. Smith December 15, 1999
Mr. David Singh is a national of India. He comes to your law office and explains that he wants to know his immigration options. Mr. Singh has a bachelors degree in computer science from an Indian university. He graduated in 1993. He and two other software engineers founded Indian Software Design (ISD) in June, 1994. He is one of the managers for ISD which now has 25 employees. His responsibility is to supervise software design, the major function of ISD. ISD's major customers are Silicon Valley firms who contract with ISD to design software programs.
In August, 1997, ISD sent Mr. Singh to the United States to earn a Masters Degree in Computer Science. He entered on an F-1 visa. In May, 1999, Mr. Singh obtained his masters in Computer Science from the University of California at Davis (UCD). In March, 1998, he published a synopsis of his masters thesis, "Contracting Computer Design in India" in a well known trade journal. The article has won international acclaim. He has several job offers from Silicon Valley firms. The problem is that there are no H-1B visas available now. In any case ISD expects him to return. Mr. Singh tells you that he needs a job. His savings are almost gone. He was able to extend his F-1 visa a few months for practical training. But it expires January 15, 2000.
Also to complicate matters further, his personal life has dramatically changed. He is engaged to Sara Malina, who is also a national of India. She is also on an F-1 student visa. They met at UCD. She will earn her bachelors in computer science engineering in May, 2000. Over the last year they have carefully negotiated with the respective families in India over their plans to have a "love marriage". The families have agreed to bless their marriage if they have a traditional wedding ceremony in India. Sara's family is wealthy. Her father told Sara that he is willing to make a substantial investment in the United States if it will help the young couple.
David explains that he and Sara are patient. They would rather take their time to do things right than to make a move that may cause them problems. Their long term goal is to permanently reside in the United States. Their short term goal is to be together as much as possible.
Identify their immigration options and potential problems.
Mr. Howard Chan has been referred to you by his criminal defense lawyer, Joe Brown. Mr. Brown sends you the following memorandum before you meet with Mr. Chan.
Re: Howard Chan
December 15, 1999
"Dear Immigration Counsel: This case is now pending in the Immigration Court. On January 5, 1993, Mr. Chan, a Chinese national, came here from China on an L-1 visa. In late 1997 he lost his employment. The Immigration and Naturalization Service (Service) notified him that he was out of status and should depart the United States. He did not do so. On January 10, 1998, he applied for his driver's license and falsely claimed that he was still is status. He was prosecuted for perjury. The sentencing judge wanted to use Mr. Chan as an example to demonstrate that perjury is a serious offense (this was during the Clinton impeachment saga). The judge clearly indicated that Chan should go to jail. Fortunately, I plea bargained for only six months in county jail with 5 years probation. The judge sentenced him to 5 years state prison but suspended execution of sentence. I did not file an appeal. Under the circumstances I got him a good deal.
I understand that only the jail time counts, right?
Chan was released from jail, with good time, on April 15, 1999. But he was detained on an immigration hold. I got him released on an immigration bond. But now Mr. Chan has brought me a "Notice to Appear", that he received, which states:
"There is hereby lodged against you the charge that you are subject to being deported or removed from the United States pursuant to INA Section 237(a)(2)(iii), in that you have been convicted of an aggravated felony as defined in Section 101(a)(43)(S), in that you were on January 15, 1999, convicted in the Superior Court, County of Yolo, of the offense of Perjury, in violation of Section 118 of the California Penal Code. For that offense you were sentenced to serve five years in prison."
"Chan is supposed to appear in immigration court on January 6, 2000. Good luck!"
Attorney at Law
Mr. Chan meets with you. He says that he knows he is facing deportation for the perjury conviction but that he is afraid to go back to China at least for now. He states that he has never considered asking for political asylum but now he feels that he may qualify. He says that he can sell his share of a company in China to pay your fees but only if it is worth it. When you ask him what his immigration plans are he replied that some day he would like to be able to return to China and to continue to visit the United States to do business here. He asks you to explain his options to him. He is particularly interested in how long he can stay here legally if he hires you to defend him. He tells you that his father is a lawful permanent resident who health is poor. Chan is married but separated from his wife who is in China.
Mr. Chan explains that he has been a devout follower of Falun Gong since 1992. For that reason he is afraid that he will be jailed or worse if he is deported to China. In your research you learn that Falun Gong, in China, blends Buddhist school teachings with Tai Chi-like movements and yoga-like meditation. Its members prefer collective exercises because they believe in the "stronger" energy field that results from group activity. He tells you that the movement's Chinese founder and leader, Li Hongzhi, began teaching Falun Gong in 1992.
China outlawed Falun Gong on July 22, 1999. Your research confirms that since the crackdown began, Falun Gong followers have been detained, including 200 people who have been identified as the group's leaders or core members. Mr. Chan states that his belief in Falun Gong is the essence of who he is as person and that if he is returned to China he would practice Falun Gong and would protest the government's brutal campaign of repression against the Falun Gong's so-called leaders.
The US State Department said in a recent report on religious freedom that during Beijing's grand inquisition of the past few months, "tens of thousands of Falun Gong practitioners were reportedly detained" and required to write statements disavowing the Falun Gong. Chan says that he has heard that Falun Gong practitioners who refuse to recant have already been sent to prison camps, without trial, for terms of up to three years in a process called "reeducation through labor."
The party-directed People's Daily newspaper has said that the new regulations, on "The Crime of Organizing or Using Evil Religions", defines evil religions as "illegal organizations that use religion or other labels to deify their founders, spread superstition and heresy to misguide others, or lead members to endanger society." The Chinese government has studied the role of the churches in bringing down Communist dictatorships in Eastern Europe 10 years ago. There are reports that membership in the spiritual group may now outstrip membership in the Communist Party. Its ranks include influential people in the party, the government and the military.
In order to properly counsel Mr. Chan prepare a memorandum to the file that sets forth the possible immigration defenses or other legal strategies available to Mr. Chan. In your memorandum describe the statutory grounds, if any, for relief, the strength of his claim and which, if any, of his defenses would be subject to judicial review. You have just read that the Board of Immigration Appeals have changed their procedures to provide for summary affirmation, by one BIA member, of removal orders. This means that if the Immigration Judge denies all your claims the BIA may affirm within a few short months. Although you might be able to challenge a removal order by habeas corpus the more important question is whether the Ninth Circuit would exercise jurisdiction. (For the purposes of your answer assume that perjury is only a "particularly serious crime", within the meaning of INA § 241(b)(3) if it is an "aggravated felony".)
On July 4, 1997, Pablo, a national of Mexico, entered the United States without inspection. On November 15, 1998, Jane, a United States Citizen, married Pablo. On November 16, 1998, Jane filed an immediate relative petition (I-130) on behalf of Pablo. On March 15, 1999, the Immigration and Naturalization Service (Service) interviewed Pablo at his place of employment. As a result of that interview, the Service mailed a Notice to Appear to Pablo which alleged that he was removable as a national and citizen of Mexico who entered the United States without a visa and without inspection. Pablo has consulted you for advice. What are Pablo's options? Please describe the consequences of exercising those options and whether he can lawfully return.
On April 1, 1998, Carla Arnold, a Canadian national, became a lawful permanent resident. This was pursuant to her citizen brother's petition who has since died. On August 15, 1999, she returned to Canada for a short trip to visit her ailing mother.
She had made such visits dozens of times before. Her "green card" was all she needed. While in Canada her mother had a stroke and required constant care. Carla decided to stay with her. It was several months before her mother died. When Carla attempted to return to the United States she was inspected. The Service agent asked her what her means of livelihood were. She explained that she had lost her secretarial position as a result of her lengthy absence to care for her dying mother. The Service agent suggested that she withdraw her application for admission because she was inadmissible as a person "likely ... to become a public charge" within the meaning of INA § 212(a)(4). Carla is now in detention awaiting her removal hearing. A friend of Carla's has retained you to represent her. Her only relative that is living in the United States is one adult niece who is unemployed. What are Carla's options and what are the consequences of exercising those options?
State what arguments or strategies may be available to Carla to demonstrate that she is admissible.