Immigration Law 364A - Spring 2005 - PROBLEMS
In fiscal year 1, the ceilings on family-sponsored and employment-based immigrants were 260,000 and 140,000, respectively. In the chart that follows, "qualified applicants" are those who meet the requirements of the designated category and do not fall within any of the exclusion grounds (such as criminality, disease, etc.). The figures given for qualified applicants include not only those who applied during the particular fiscal year, but also any who applied in past years and are still waiting. In this Problem, ignore the deductions for children born to LPRs temporarily abroad and for parolees.
Applying the statutory formulas laid out above, fill in the blank columns:
Fiscal Year 1
Fiscal Year 2
Fiscal Year 3
In fiscal year x, 220,000 immediate relatives were admitted to the United States. 245,000 family-sponsored immigrant visas were available that year and 235,000 of them were used. Exactly 140,000 employment-based visas were available, and all were taken. First, calculate the total worldwide ceiling for the following fiscal year (x + 1), both (a) for family-sponsored immigrants and (b) for employment-based immigrants. For purposes of this Problem, assume there are no deductions for children born to LPRs temporarily abroad or for parolees.
Next, look at the chart below. The column headed "Statutory Quota" summarizes the formulas for computing the statutory ceilings for each of the four family-sponsored, and each of the five employment-based, preference categories. Refer to INA §§ 201(c, d) and 203(a, b) for more details if needed. The next column gives you the hypothetical number of qualified visa applicants in each preference, for year x + 1. Complete the column headed "Visas Issued".
|23,400 plus unused 4ths
114,200 plus unused 1st's, plus any excess of total family-sponsored ceiling over 226,000
23,400 plus unused 1st's and 2d's
65,000 plus unused 1st's, 2d's, and 3rd's
|28.6% of E-B ceiling + unused 4th's and 5th's
28.6% of E-B ceiling + unused 1st's
28.6% of E-B ceiling + unused 1st's and 2nd's
7.1% of E-B ceiling
7.1% of E-B ceiling
In doing the Problems in this set, assume it is now October 2001 and consider the immigrants' possible routes to permanent residence in the United States. To map out your strategy, you will need to consult the preceding Visa Bulletin chart. Keep in mind also that, after five years of LPR status (or three years "living in marital union" with a United States citizen after attainment of LPR status), one may apply for naturalization to United States citizenship. INA §§ 316(a), 319(a).
X, who was admitted as an LPR four years ago, has just married Y, a native and citizen of Costa Rica. Y wants to become an LPR as well. Y is very close to her sister Z, who is married and has two sons, ages 2 and 7. Z and her husband and sons are all Costa Rican citizens. X is in your office. He wants your help in securing LPR status for Y and, if possible, Z and her husband and sons. What advice would you give X? Would your advice change if all the intending immigrants were natives of the Philippines rather than Costa Rica?
A, who is a native and citizen of Denmark, telephones you from Europe. She is contemplating marriage to B, who is also a native and citizen of Denmark. A is six months shy of her twenty-first birthday. Her father is a citizen and resident of the United States. A wants to know whether she and her future husband will be eligible to immigrate to the United States and whether there is any reason for them to delay their marriage.
To do these Problems, you will have to consult the text of INA § 216. For Problems 12 and 13, you will also have to read INA § 204(a)(2).
A, a United States citizen living in Amsterdam, marries B, a noncitizen. Eighteen months later, having decided they would like to live in the United States, they begin the process by filing a "visa petition" with the INS. Three months after that (i.e., 21 months after the wedding), B receives an immigrant visa. Under INA § 221(c), B has up to six months in which to use that visa to enter the United States. Do A and B need any advice at this point?
C and D, having been married exactly one year, are simultaneously admitted to the United States as LPRs. C is admitted under one of the employment-based preferences and D is admitted as the accompanying husband. One year later, they divorce. D has heard of IMFA and wants to know whether the divorce will affect his immigration status. What would you tell him?
E entered the United States on a family-sponsored 2A visa as the wife of F, an LPR whom she had married a year and a half earlier. (So short a wait is unrealistic as of this writing.) E and F are still happily married, but it is now 23 months since E's admission and F adamantly refuses to appear for the INS interview scheduled on their joint petition. E pleads with him to come, but F has traumatic memories of his own prior contacts with the INS and simply will not set foot in an INS office. What should E do?
G, a citizen of Mexico, would like to immigrate to the United States to live with his father, an LPR who is now elderly and in need of both financial support and daily help. G knows that he could eventually come in under the family-sponsored 2B preference as the unmarried son of an LPR, but in Mexico that queue is several years long and G feels his father needs him now. G therefore arranges a sham marriage to H, a United States citizen, enters the United States on an immediate relative visa a few months later, moves in with his father, and immediately divorces H. Twenty-one months after G's admission, his father is still alive and in much the same condition. G seeks advice as to what he should do now.
J is admitted to the United States as an LPR on the basis of her one-year-old marriage to K, a United States citizen. A year after her admission, the marriage breaks down irretrievably. J is a devout Roman Catholic whose personal religious convictions preclude her petitioning for divorce, and her vindictive husband will neither initiate divorce proceedings himself nor join in her future petition to remove the conditions on her resident status. What advice do you give J? (2)
L marries M, an LPR. On the basis of that marriage, L is admitted as a family-sponsored 2A immigrant 22 months later. Three months after L's entry, her teenage daughter from a prior marriage, N, is admitted as a child "following to join" a preference immigrant (her mother). Six months after that, L and M divorce. What will happen to N?
P marries Q, an LPR, and on that basis is admitted as a conditional permanent resident one year later under the family-sponsored 2A preference. Ten months after that, P's teenage daughter from a prior marriage, R, is admitted as a child following to join her mother. Twelve months later, P and Q jointly petition for removal of P's conditional status. The INS removes the conditions as of the second anniversary of P's admission. Six months after that second anniversary, P and Q divorce. (R has now been here 20 months in all.) First, may the INS terminate R's LPR status? Second, if the INS does not initiate proceedings to terminate R's status, must R eventually petition for removal of her conditional status? If so, when must she file and what will she need to prove? See 8 C.F.R. § 216.4(a)(2) (1996).
S marries T, a United States citizen, and six months later attains conditional LPR status as an immediate relative based on that marriage. Two years after her admission, the conditions on S's status are removed. Six months after that, S and T divorce. A month later, S marries U, a noncitizen whom she had dated before meeting T. She then immediately files with the INS a petition to classify U as a family-sponsored 2A immigrant. Should the INS grant the petition?
V marries W, a United States citizen, and six months later attains conditional LPR status on the basis of that marriage. Two years after her admission, the conditions on V's status are removed. A year and a day after that, V moves out of the house and sues for divorce. The same day, V applies for naturalization, which an LPR who has lived in marital union with a citizen for three years (and satisfies other requirements) may receive. V attains naturalization six months later. One month after that, V receives the final divorce decree. The very next day she marries X, a noncitizen whom she had dated before meeting W, and files with the INS a petition to classify X as an immediate relative. Will the INS grant the petition?
For some of these Problems, you will again need to refer to the Visa Office chart on page 143 above.
A and her eighteen-year-old daughter B (from a prior marriage) are citizens of Turkey. A marries C, an LPR living in the United States. Can A and B immigrate?
D and her daughter E (who was born out of wedlock) are also citizens of Turkey. E's biological father, F, is a United States citizen. He deserted D before E's birth and has never communicated with D or E, although they know his whereabouts. When E was seventeen, D married G, who had just been admitted to the United States a few days earlier as an LPR. D and E delayed initiating the immigration process because D needed to stay in Turkey to care for her ailing father. D's father died one year later (at E's age 18), and D and E would now like to immigrate to the United States. What is their best strategy?
While H and J were married, H fathered a child by K, a single woman. All three adults were citizens and residents of Iceland. H and J remained married, and H avoided all contact with his and K's child, whom they named "L". Eventually L grew up, at age 25 married a United States citizen, and entered the United States as an immediate relative. At age 31 she became a naturalized citizen. H learned of this and now wonders whether L (if she is willing to help) might be his and his wife's ticket to LPR status in the United States. Is she? See Matter of Fong, 17 I. & N. Dec. 212 (BIA 1980).
N is the legitimate son of M. N's mother (M's wife) died during childbirth. P is the mother of Q, who was born out of wedlock. At a time when N was 22 and Q was 8, M and P married. N was later admitted to the United States as an LPR and eventually attained naturalization. Q is now 18 and would like to immigrate to the United States. M and P are still married. Q's only American "relative" is N. May Q immigrate? See Matter of Gur, 16 I. & N. Dec. 123 (BIA 1977).
Before attempting this Problem, you should study the above description. Consult INA § 203(c) if you would like more detail. You won't need a calculator.
Note that the data provided in this Problem are hypothetical, not actual. In most instances they are not far off from reality, but some liberties have been taken (for example, inflating the population of Oceania) in order to simplify the arithmetic.
As an INS attorney, you have been handed a copy of INA § 203(c) and asked to allocate the 50,000 diversity visas among the six regions. You have gathered, for the preceding five-year period, the data that appear in the table below. How many diversity visas will each region receive?
Population of Number of
Immigration Low-admission Diversity
Past Five Years States in Region Visas
Africa 60,000 300,000,000
Asia 1,200,000 900,000,000
Europe 450,000 650,000,000
North America (excluding Mexico) 60,000 -0-
Oceania 30,000 50,000,000
South America, Mexico, Central America, and the Caribbean 1,200,000 100,000,000
TOTAL 3,000,000 2,000,000,000 50,000 CHAPTER 3 - NONIMMIGRANT PRIORITIES
PROBLEMS 1-3 (P. 330)
Problem 1 (P. 330)
X, a citizen and resident of Guatemala, owns a truck. To earn extra money, he would like on occasion to transport the products of various Guatemalan manufacturers from Guatemala to the United States. Should he be granted a B-1 visa?
Problem 2 (P. 330)
Suppose X, instead of being an owner-operator, is an employee of a large Guatemalan trucking company. He will regularly drive the company's trucks back and forth between Guatemala and the United States, delivering and picking up goods. Is he entitled to a B-1 visa?
Problem 3 (P. 330)
Y, a citizen and resident of Belgium, wants to come to the United States for two months to paint pictures of the Grand Canyon, which she would then bring home for sale (the pictures, not the Canyon). Should she be granted a B-1 visa? What if she plans to sell her paintings in the United States?
Problem 4 (P. 345)
X, a United States citizen, owns a night club in Miami Beach. He ordinarily hires singers for one-week engagements. A number of the singers have become regulars who return for several stints per year. While on vacation in Mexico, X discovers "El Fantastico", a talented night club singer who is beginning to develop a popular following in and around Acapulco. X would like to bring "El Fantastico" back to the United States to perform in Miami Beach for a week. As X's lawyer, what possible avenues would you explore?
Problem 5 (P. 345)
Y, a citizen of Argentina, is currently the tenth-ranked woman tennis player in her country. Last year she was ranked twelfth. She wants to come to the United States to compete in the U.S. Open. As her immigration lawyer, what should you do?
Problem 6 (P. 349)
X, a citizen of the United Kingdom, attended Cal Tech for two years in his youth. While there, he studied mechanical engineering. Financially unable to finish his degree, he returned to the U.K. and began a long career at Irving, Ltd., a corporation that manufactures machine parts. During his first five years there, X served as an assistant to one of the company's engineers. His engineering work was outstanding, and he gradually moved up the corporate ladder into positions that combined technical and managerial responsibilities. For the past eight years he has been a second vice-president in the company's marketing division. He occasionally gives presentations at industry conferences in the U.K. and in that way has become reasonably well known. Irving, Ltd. would now like to send X to Cleveland for two to three years so that he can spend full time working with Boring-Is-Us, one of Irving's most important clients. If he can come, X's job would be to solve product design problems; he would be trying to adapt Irving's production methods to the needs of Boring-Is-Us. You are Irving's lawyer. For what types of nonimmigrant visas would you consider applying, and what problems would you foresee?
Y, a citizen of Italy, developed a love of chess early in life. She served as President of the Chess Club during her two years as an undergraduate at the University of Arizona back in the late 1970's, but she dropped out of college after her sophomore year so that she could devote full time to competing in chess tournaments throughout Europe. She was quite successful, winning a number of lesser competitions and finishing respectably in several major ones.
In 1989, after a few years of competition, Y set up an Italian corporation whose business was to manufacture and distribute elegant chess sets. She ran the business herself, individually handcrafting the pieces at first, and eventually preparing designs for machine production. Soon the company was a thriving enterprise. Within five years, its annual worldwide sales were the equivalent of 3,000,000 U.S. dollars. Y also found time to continue competing in national and local chess tournaments. The most recent ratings of the Italian Chess Federation ranked her 17th in Italy.
It is now 2002, and Y is anxious to expand her geographic and career horizons. While lawfully on vacation in the United States on a B-2 visa, she consults you, an immigration lawyer, for advice. She plans to return home to Italy before her authorized stay expires and continue to run her chess set business. In about a year or so, however, she would like to come to the United States to establish a second corporation. The main function of that corporation, which she estimates would require an initial investment of $200,000 (an amount she has available), would be to set up and promote professional chess tournaments throughout the United States. Y would want to run the company herself for at least the first two or three years. After that, depending on how well the company is doing and how much she is enjoying life in the United States, she would like the flexibility to decide then whether to stay on for a longer but still temporary period (rather than return to Italy at that time and hire someone else to run the U.S. company). Either way, her intention is to remain in the United States no longer than five years at the most. She also sees this United States company as a high-volume buyer of the chess sets manufactured by her Italian company. While in the United States, she would occasionally compete for prize money in some of the tournaments herself.
Y would like to know what options she has under the United States immigration laws and, if there is more than one choice, the tactical pros and cons of applying for the various possible nonimmigrant visas. What advice will you give her?
PROBLEMS 8-9 (P. 363-364)
Problem 8 (P. 363-364)
X, a citizen of Ghana, has been awarded a Smithford Foundation grant to pursue a bachelors degree in chemistry for four years at NYU. Smithford is a private nonprofit organization that receives 75% of its funds from private contributions and 25% from the U.S. government. By its terms, the grant is contingent upon X obtaining a J-1 visa.
X is not now certain of his future, post-degree plans. Graduate education is one possibility. Perhaps he will want to return to Ghana, or perhaps he will want to find a way to remain in the United States.
X has the option of turning down the Smithford grant and instead borrowing money from his parents to study at NYU, in which case he would be eligible only for an F-1 visa. But he would eventually have to pay his parents back, and in addition the amount they could spare would be less than the amount of the Smithford grant (though still adequate to support himself, his wife, and his three young children, all of whom would be coming with him).
X wants to know whether he is better off with a J-1 visa and a Smithford fellowship, or an F-1 visa and borrowed funds. As his lawyer, what advice do you give him?
Problem 9 (P. 364)
Y, a citizen of India, entered the United States on a J-1 visa four years ago. She has received no government funding at all, but she does possess skills that are needed by her home country. A few months ago she married a United States citizen and applied to the INS to adjust her status to that of LPR. With her application she requested a waiver of section 212(e), asserting exceptional hardship. She has contracted a life-threatening (but noncontagious) disease for which medical treatment is available only in the United States. Living with her and her new husband is her seven-year-old daughter from a previous marriage. Her daughter, who is an LPR, speaks only English, knows only American culture, and thus will find life difficult if the family has to move to India. You are the INS District Director. Should you recommend the waiver?
X enters the United States on a valid K-1 visa. Two months later, her 10-year-old son from a prior marriage joins her by entering on a valid K-2 visa. Two months after that, X marries the citizen petitioner. Are she and her son deportable under INA § 214(d)?
PROBLEMS 11-13 (PROBLEMS IN ETHICS) (P. 377-378)
In working out these problems, you need to know that Rule 1.3 of the ABA Model Rules of Professional Conduct requires the lawyer to "act with reasonable diligence and promptness in representing a client." The comment accompanying Rule 1.3 adds:
* * * A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued.
You should also be aware of ABA Model Rule 1.6. It provides:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; OR
(2) * * * [not applicable here].
Two final pieces of information: ABA Model Rule 1.6(b), which lists the exceptions to the confidentiality requirement, replaced Disciplinary Rule 4-101(C), subparagraph (3) of which had permitted a lawyer to reveal "the intention of his client to commit a crime and the information necessary to prevent the crime." In some states, versions of DR 4-101(C) are still in force.
The last datum is that the "Terminology" section introducing the ABA Model Rules provides in item :
"Knowingly," "Known," or "Knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
Problem 11 (P. 378)
Your client tells you she plans to apply for an extension of her F-1 visa. In the course of the conversation, however, she makes crystal clear that she intends to remain permanently in the United States whether she can do so lawfully or not. What, exactly, should you tell her?
Problem 12 (P. 378)
After you give the client the advice you consider appropriate, she says she plans to file her application for an F-1 extension anyway. She tells you she is "willing to take the chance of getting caught". Should you report her to the INS?
Problem 13 (P. 378)
You now have a subtler client. The following exchange takes place:
Client: I'd like to get a green card. Is there any chance of that?
Lawyer (after exhausting all the possibilities): I'm afraid there's really no way.
Client: Then how about just extending my B-1? When it runs out, I'll stay on. The worst that can happen is they deport me.
Lawyer: Well, I have to tell you that if that's your intent you're not eligible for an extension. To qualify for a B-1 extension, you need an intent not to abandon your foreign residence.
Client: Well, why don't you just send it in for me anyway? I'll worry about my immigration problems when the time comes.
Lawyer: Sorry, that would violate my ethical obligations as an attorney.
Client (with knowing smile): OK, I understand the bind you're in. I just changed my mind. All I want to do is stay for another year. Then I plan to go home.
Lawyer: I appreciate your sensitivity, but obviously you're just saying this to insulate me. We both know you plan to stay on.
Client (still smiling): No, seriously, I really mean it. I'll leave in a year. Honest.
Lawyer: Sorry, I just can't do it.
Client (no longer smiling): Look, I'm impressed by your ethics. But you've succeeded. You've convinced me not to commit a fraud, and I won't. I truly will leave in a year. What do I have to do to convince you? Are you my lawyer or my judge?
You're inclined not to believe him, but there is no way to be sure of your instincts. Should you fill out the application for him?
PROBLEM 14 (P. 379-380)
X, an Australian law professor, is doing research at the American Bar Foundation under a grant provided by the Australian government. He is here on a J-1 visa that has already been extended once. X doesn't think the INS will grant another extension, and his authorized stay will expire eight months from now. He would like to enroll in an LL.M. program at Boalt Hall. What should he do with respect to his immigration status? (This is tricky; read INA §§ 248 and 212(e) carefully).
CHAPTER 4 - EXCLUSION GROUNDS AND WAIVERS - page numbers to be added later
At this time, please read INA §§ 212(a)(6,7, and 9); 212(d)(3,11, and 12), and 212(i). You need to be familiar with them to do the Problems that follow.
Problem 1. X, a noncitizen, was born on July 1, 1985. On July 1, 2002, he made an unauthorized crossing into the United States and remained. On February 1, 2004, the INS apprehended X and initiated removal proceedings. One month later, while the removal proceedings were still pending, X left the United States on his own. It is now March 1, 2006. X meets the requirements for H-1B status, and there is no backlog for that category. Is he admissible?
Problem 2. Y (an adult) entered the United States on June 1, 2002 on a nonimmigrant visa that was valid for one year. On May 1, 2003, she applied for a one-year extension of stay. The INS, believing that the request generated some difficult issues, considered her case until December 1, 2003, at which time it finally denied a renewal. Y stayed on nonetheless, and on March 1, 2004, Y gave birth, out of wedlock, to a baby girl (who is a United States citizen because of her birth in the United States). Y and her daughter remained in the United States until May 1, 2004. On that date, they returned to Y's country of origin. It is now May 1, 2006, and Y has a job offer in the United States that would qualify her for employment-based immigrant status if she is otherwise admissible. Y has also recently learned that her young daughter has a life-threatening disease for which the only successful treatment is in the United States. Is Y admissible?
Problem 3. Z, a noncitizen, entered the United States surreptitiously on January 1, 2003. On December 1, 2003 the INS apprehended him, initiated removal proceedings, and detained him pending a removal hearing on February 1, 2004. At the hearing, Z was ordered removed and was kept in continued detention until his actual removal on February 5, 2004. Now, six years later, Z meets the requirements for employment-based second preference status and would like to immigrate to the United States. Is he admissible?
Problem 4. A, the noncitizen beneficiary of a family-sponsored second preference visa petition on which the priority date was not yet current, tried to enter the United States in May 2003 at an undesignated point in the middle of the night. He was apprehended and removed from the United States under INA § 212(a)(6)(A) for arriving at a place not designated as a port of entry. In October 2003 his priority date became current and he formally applied to the United States consulate for an immigrant visa. At the interview, the consular officer asked A whether he had ever before tried to enter the United States. A said he had not. The consular officer then noticed in A's file a letter from the INS revealing the prior removal order. Should the consular officer issue the visa?
Problem 5. B, a noncitizen, entered the United States on June 1, 2002 on a one-year B-1 business visitor visa. On August 1, 2002, she tried unsuccessfully to obtain a counterfeit birth certificate that would have stated her place of birth as Waterbury, Connecticut. Had she succeeded, she planned to use that document to support an eventual United States citizenship claim. Unable to obtain the birth certificate, B left the United States on October 1, 2002. It is now 2004, and B is back in her native country. She wants to return to the United States for a month's vacation. May the consular officer issue her a visitor for pleasure (B-2) visa?
Problem 6. X is a British citizen and a lecturer in geology at Kings College, University of London. The University of Maryland has offered her a one-year visiting appointment, which X is keen to accept, mainly because she and the University are hopeful that the visit will lead to a permanent tenure-track appointment down the road. The only hitch is that X joined the British Communist Party a year ago and has been attending monthly meetings. You are the General Counsel for the University of Maryland. What advice will you give the geology Department?
Problem 7. Y and Z, both noncitizens, want to enter the United States for a two-week tour in which each would deliver a series of speeches critical of their government. Y is an opposition candidate for national office in his country. Z is a political ally of Y but is not herself a government official or candidate. Y and Z believe that their speeches will receive broader publicity if made in the United States than if made at home. The incumbent President of their country is extremely upset at the prospect of the United States giving Y and Z a "propaganda forum," as he calls it, and has threatened to recall his Ambassador if either of the two speakers is admitted. Are they admissible?
Problem 8. W, a citizen of Italy, is a world-renowned scientist interested in immigrating to the United States to join his 30-year-old daughter, who has lived in San Diego as an LPR for eight years. W has a permanent job offer from a leading United States think tank whose personnel manager has consulted you for advice. There appears to be little difficulty in getting W classified as an employment-based first preference immigrant, and the first preference is current, but W has been a vigorous and long-term member of the Communist Party and is not willing to terminate his membership. Will it be possible for W to immigrate?
Problem 9. W, a citizen of Canada, was born on April 1, 1980. On March 1, 1998 she was arrested for burglary, a crime held to involve moral turpitude and punishable by up to two years imprisonment. W pleaded guilty on May 1, 1998. On June 1, 1998 the trial judge imposed a one-year jail sentence, which she began serving that day. She was released early, for good behavior, on December 1, 1998.
It is now February 1, 2004. W has applied for an F-1 (student) visa to pursue a bachelor's degree at the University of Florida, where she has been accepted for admission. She has no United States relatives. You are the consular officer. What action should you take?
Problem 10. Assume the same facts as in Problem 9, except that this time W tells you about one other brush she had with the law: A year ago she committed shoplifting (also a crime involving moral turpitude), was apprehended by the shopkeeper, and confessed to the police. She was not arrested, because the shopkeeper did not press charges. The maximum penalty for shoplifting in the Canadian province where her act took place was six months in jail. As a consular officer, what should you do?
Problem 11. Y and his wife, citizens of Spain, have a twenty-four-year-old United States citizen son. They decide they would like to immigrate to the United States. The problem is Y. In response to a question from the consular officer, Y admitted that twenty-five years ago, as a 22-year-old college senior, he had bought two marijuana cigarettes, had tried one of them, had not liked it, had sold the second one to a friend, and had never tried illicit drugs again. May Y be admitted?
Problem 12. Z, a citizen of Ghana, was admitted as an LPR in November 1989 under one of the employment preferences. In early 2000, INS officials discovered that Z had fraudulently misstated her professional credentials. On April 1, 2000, Z was criminally convicted of defrauding the United States. (Assume this is a crime that involves moral turpitude, but not an "aggravated felony," a term you will explore more fully in chapter 6.) She was sentenced to a year in prison. On December 1, 2000, after serving eight months, she was released and immediately removed. It is now November 1, 2003. Z is back in Ghana. She has now entered into a bona fide marriage with a United States citizen. Z's new husband needs to return to the United States to be with his mother, who has leukemia and is expected not to survive more than a few years. Z would like to immigrate to the United States with her husband. Will she be admitted?
Problem 1. Your friend, a United States citizen who has just married a noncitizen, knows that you are a law student and that you are enrolled in an immigration course. She cannot afford to hire an attorney, so she asks if you would fill out her I-130 (visa petition) for her. The marriage is clearly genuine, and her case strikes you as straightforward. But you have just read the Matus decision and the information following it, and this has made you a little bit nervous about helping her. Should you do it?
Problem 2. Rule 5.5(b) of the ABA Model Rules of Professional Responsibility prohibits a lawyer from "assist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The analogous provision in the old ABA Model Code (still followed in many states) was Disciplinary Rule 3-101: "A lawyer shall not aid a non-lawyer in the unauthorized practice of law." (3) That Disciplinary Rule was supplemented by Ethical Consideration 3-6, which provided:
EC 3-6. A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.
In 2000, the Justice Department added an analogous disciplinary ground for practice before the INS, immigration judges, and the BIA. It punishes anyone who "[a]ssists any person, other than a practitioner [who is authorized to practice in those forums], in the performance of activity that constitutes the unauthorized practice of law." 8 C.F.R. § 3.102(m) (2001).
You are a third-year law student enrolled in your school's clinical program. You have been placed in an office that handles immigration cases for low-income clients. The office handles a high volume of cases, and your personal case load is a heavy one. One of your tasks is to interview the client, fill out an intake sheet, and then, while the client is waiting, bring the intake sheet to your supervisor, a licensed attorney who reads the sheet and discusses the case with you. If there are no unusual problems, and if the next step in the case is to prepare a form for the client to submit to the INS, the office procedure is that you fill out the form, make a copy for the office files, give the completed form to the client to bring to the INS, and provide the client any other necessary instruction, including whether and when the client should return to your office. Are you engaged in the unauthorized practice of law? Is the supervising attorney complying with his or her ethical duties?
Problem 3. Your client, X, is a licensed attorney who has been charged with violating INA § 274C(e). The facts are uncontested. X is an immigration lawyer. He helped prepare an I-130 visa petition for his United States citizen client, Y. Y was petitioning for immediate relative status on behalf of her noncitizen daughter. Y's daughter in fact was 21 years old, but Y told X that Y's daughter was only 19 (which would have qualified her as an immediate relative). Y gave X a forged birth certificate showing her daughter's age as 19. X, unaware of the fraud, then filed the visa petition and the accompanying documents, including the forged birth certificate. Although the petition specifically asked for the name of the preparer, if any, X deliberately left that line blank. He told Y, "My name is mud right now with the INS. I think you're better off if they don't know this is my case." The INS detected the forged birth certificate, and now X faces criminal prosecution and possible imprisonment.
As X's attorney, what arguments might you make? Before answering, read carefully subsections (e) and (f) of INA § 274C.
PROBLEMS 4-7 - To do the Problems that follow, you will need to consult INA § 245(a,c, and k) and review sections 212(a)(6)(A), 212(a)(9)(A), and 212(a)(9)(B). In each Problem, assume it is now January 1, 2003 unless specified otherwise.
Problem 4. You represent X, a noncitizen lawfully in the United States on a student (F-1) visa. She is authorized to remain for the duration of her student status, which is expected to last another two years. X would like to become an LPR, and she qualifies for family-sponsored 2A status as the unmarried daughter of an LPR, but the latest Visa Office Bulletin shows a 7-year wait for that category for her country. As her attorney, what would you advise her to do?
Problem 5. Y, a noncitizen, entered the United States without inspection or admission 15 months ago. Now married to a United States citizen, he would like to become an LPR. Will he be able to obtain either an immigrant visa at a U.S. consulate overseas or adjustment of status in the United States?
Problem 6. Z is a 46-year-old business executive from a country that severely restricts emigration. He entered the United States 14 months ago as a business visitor (B-1) and was authorized to remain one year. He has not applied for any extension of his nonimmigrant stay. Unbeknownst to his country's authorities, who would never have let him leave had they known, Z's mother is a citizen and resident of the United States. He thus qualifies for family-sponsored first preference status, which you should assume is current. Z is convinced, however, that if he were to return home to apply for an immigrant visa, his government would not permit him to leave again. Z now comes to you for legal advice. What should you tell him? See 22 C.F.R. § 42.61(a) (2001).
Problem 7. W, a citizen of Pakistan, entered the United States on a student visa and was admitted for the duration of his student status. He enrolled at Arizona State University to do a bachelor's degree in physics. In the fall of his junior year, a large manufacturing company offered him a permanent position that was to begin immediately after graduation. W, delighted, consulted you, an immigration lawyer, as soon as he received the offer. You helped the company apply for and receive labor certification, and in March of his junior year the INS approved the required visa petition. His priority date became current in January of his senior year. You immediately filed an application for adjustment of status. On May 15, while the application was still pending, W graduated. On July 1, to your surprise, the INS denied adjustment on the ground that W had once been convicted, in Pakistan, of a crime involving moral turpitude. Your research found no case precisely on point, but analogous cases suggested the INS was probably wrong to classify the particular crime as one that involves moral turpitude. You informally reported your findings to the District Director of the local INS office, but you could not convince her. On July 15, your client's F-1 status expired. It is now August 1. The INS has not instituted any removal proceedings. W has not worked, and within a few months his savings will run out. What are his options?
Problem 1. X, a noncitizen, arrived at a United States airport on a flight from Lisbon. She waited in line to pass through immigration control. When her turn came, the immigration inspector looked at her passport and her B-2 (visitor for pleasure) visa stamp, asked her a few questions, and then told her to go through, adding "Enjoy your stay." On the other side of the room, 35 feet in front of her, was a doorway that led to the baggage claim area and eventually to customs. Just as she was about to pass through the doorway, another immigration inspector, who happened to be walking past her en route to his lunch break, noticed what looked like needle marks on her arm. He pulled her aside, questioned her further, and detained her pending a medical inspection. Has she made an "entry?" See generally Correa v. Thornburgh, 901 F.2d 1166, 1171-72 (2d Cir.1990); Matter of Patel, 20 I. & N. Dec. 368 (BIA 1991).
Problem 2. Y, a noncitizen, furtively crossed the border from Tijuana, Mexico to San Ysidro, California in the middle of the night at a point not designated for crossing. A Border Patrol officer standing 50 feet on the United States side of the border spotted Y while he was on the Mexican side. The officer kept Y under surveillance until he had proceeded about 100 yards into United States territory. At that point, the officer placed Y under arrest. Has he "entered?" (In United States v. Ruiz-Lopez, 234 F.3d 445 (9th Cir. 2001)(as amended), the court held that border surveillance constituted restraint, and thus there was no entry, for purposes of an analogous criminal statute.)
Problem 3. Suppose in the previous Problem the Border Patrol officer, instead of apprehending Y 100 yards inside United States territory, had tracked him until that point and then lost sight of him. Suppose further that Y escaped into the night, made his way north, and was picked up three days later in Los Angeles. Has he now "entered?"
Problem 4. Under INA § 237(a)(2)(A)(i)(I), which you will study later in this chapter, a noncitizen is deportable if he or she commits, within five years after "admission," a crime involving "moral turpitude" punishable by a year or more, and is subsequently convicted. A, admitted as an LPR six years earlier, goes abroad for seven months on an innocent trip. A few months after returning, he commits a crime involving moral turpitude that is punishable by more than a year. A is convicted. Is he deportable?
Problem 5. B, also admitted as an LPR six years ago, similarly commits a crime involving moral turpitude. She too is convicted. After serving her sentence, B goes abroad for one month on an innocent trip. Shortly after being readmitted, B is charged with being deportable for having been inadmissible at "entry." The alleged entry is her return from overseas, and the alleged ground of inadmissibility is INA § 212(a)(2)(A)(i)(I) (convicted of crime involving moral turpitude). Is B deportable?
Problem 6. Noncitizen C, lawfully present in the United States on an F-1 student visa, is studying at SUNY Buffalo. She and some of her American friends went to Toronto for a week over the spring break. When she returned at the end of her vacation, she presented her original documents to the immigration inspector and was allowed in. In case it ever affects her future status, does that return constitute an "admission?"
Problem 7. X, a noncitizen, enters the United States in the middle of the night at a place not designated as an inspection facility, returns home on her own initiative after a month, and then, ten years later, marries a United States citizen, obtains an immigrant visa, and is admitted. A year later, the INS somehow learns of her earlier entry. Is there any ground on which she is deportable? (Note: In the pre-IIRIRA case of Gunaydin v. INS, 742 F.2d 776 (3rd 1984), two LPRs traveled to Mexico, returned without inspection, were charged with being deportable for entering without inspection, and then, while proceedings were pending, left again and returned through proper channels. The court held that a proper entry does not erase a prior entry without inspection and that accordingly they were deportable. The Gunaydin holding no longer applies directly, because entry without inspection is no longer a ground for deportability, but is there nonetheless another way for the INS to reach the same result? Consider INA § 237(a)(1)(A)).
Problem 8. In Problem 7 above, should X have been admitted when she presented herself at a port of entry the second time? If the answer is yes (i.e., if you conclude that no apparent ground of inadmissibility applied to her at that time), should the immigration inspector have admitted her and then, the moment she entered, have told her that she is now deportable on the ground you discovered in Problem 7?
Problem 9. A, a 30-year-old married noncitizen male, has a United States citizen father. To obtain a family-sponsored first preference visa, A tells the consular officer that he has never been married. A receives his visa and is admitted to the United States as an LPR. A year later, the INS discovers the fraud. What deportability charges should the INS bring? Will A be eligible for relief under INA § 237(a)(1)(H)?
Problem 10. In 1998, B is admitted for permanent residence as the wife of a United States citizen. One year later, the INS learns that, eighteen years before entry, at age 22, B had committed a burglary, had been convicted, and had received a two-year prison sentence. Yet B had answered "no" to a question on her visa application asking whether she had ever been convicted of a crime. The INS institutes removal proceedings. Will INA § 237(a)(1)(H) be of any use to B?
Problem 11. Noncitizen C, age 17 and married, enters the United States lawfully on an F-1 student visa. She is authorized to remain for the duration of her student status. One year after admission, she obtains a final divorce decree and applies for adjustment of status as the child of a United States citizen (immediate relative). The INS grants the application. A year after that, however, the INS receives information suggesting C originally entered with a preconceived intent to remain permanently (not permitted for F-1's). The INS brings removal proceedings. It alleges she is deportable under section 237(a)(1)(A) as having entered while inadmissible under sections 212(a)(6)(C)(i) (fraud) and 212(a)(7)(A) (not in possession of valid immigrant visa). Will section 237(a)(1)(H) be of use to her?
Problem 12. D, a noncitizen, marries a United States citizen. He obtains an immigrant visa and is admitted for conditional permanent residence on the basis of the marriage. Almost two years later, the INS makes a finding pursuant to the Immigration Marriage Fraud Amendments that the marriage was genuine and still legally intact. Consequently, it removes the condition. A year after that, however, the INS is tipped off that the marriage has been a sham from its inception. The INS charges D with being deportable under INA § 237(a)(1)(A) for having entered while inadmissible under INA § 212(a)(6)(C)(i) (fraudulent visa and fraudulent admission). Will section 237(a)(1)(H) be useful to D?
Problem 13. Noncitizen E arrives at a United States port of entry and presents a counterfeit United States passport. She is admitted. A year later, she gives birth to a child in the United States. Two years after that, she is apprehended and the passport fraud is discovered. On what grounds will she be removable? Will she qualify for relief under INA § 237(a)(1)(H)?
PROBLEMS 14-16 (4) - Which of the following individuals have been convicted of crimes involving moral turpitude? For each, apply all three of the views discussed by Judge Eisele.
Problem 14. A committed a mercy killing. She took the life of her father, who had been in the final weeks of a clearly fatal disease and who had been suffering intense physical pain. She was convicted of voluntary manslaughter.
Problem 15. A state statute makes it a crime to receive property if the person "knows or should have known that said property is stolen." B was charged with that offense. At trial, a prosecution witness testified she had overheard the defendant saying he had known all along the property had been stolen. The defendant denied having made that statement. The jury found him guilty, and a judgment of conviction was entered.
Problem 16. C, arrested after a brutal beating of his wife, was charged with assault with intent to kill. The jury found him guilty of a lesser charge, simple assault. At the removal hearing, the immigration judge made a finding that C in fact had harbored an intent to kill.
Problem 17. X was admitted to the United States as an LPR in February 1998. In March 2002 he was arrested on charges of statutory rape, punishable in this jurisdiction by up to five years in prison. At a jury trial in May 2002 he was found guilty and a judgment of conviction was entered. He was sentenced to six months in county jail. X appealed his conviction as of right to the state's intermediate appellate court. In April 2003 his conviction was affirmed. Assume this jurisdiction holds statutory rape to be a crime involving moral turpitude. Is X deportable?
Problem 18. Y was admitted to the United States as an LPR on November 16, 1996. In December 2001 he went to Bangladesh to visit his relatives and to start up a business that would export gift items to the United States. When he returned ten months later, in October 2002, he was greeted by the local sheriff and arrested on charges of petit larceny, a crime punishable in this jurisdiction by up to one year of confinement. The subsequent indictment alleged that the acts constituting the larceny had occurred "on or about November 15, 2001." In January 2003, Y was convicted of petit larceny and sentenced to six months in jail. Is he deportable?
Read INA § 237(a)(2)(A)(ii) and then do the following Problem:
X, a noncitizen, was admitted to the United States as an LPR on June 14, 1997. On October 7, 2002, X was tried on two counts of bribing a public official, a crime punishable by up to ten years in prison. The evidence showed that X had given the head of the city licensing division $1000 in cash to secure a liquor license for one of X's two restaurants, and that later that same day X had returned to give the same official another $1000 to obtain a liquor license for the other restaurant. Several weeks later a secretary who had witnessed both exchanges came forward. She was able to testify at trial that the exchanges had taken place in June 2002, though she could not recall the exact date. X was convicted on both counts and, because of some unusually sympathetic circumstances, received concurrent sentences of only six months. Is X deportable?
Problem 20. A was admitted as an LPR at age 13. Eight years later, A was convicted of selling two marijuana joints to his college roommate. Is he deportable?
Problem 21. B, a noncitizen, pleads guilty, in state court, to one count of driving while under the influence of a controlled substance. The state's definition of "controlled substance" includes some drugs that do not appear in the federal definition. The record of conviction does not specify the particular drug that B used. Is she deportable?
PROBLEMS 22-24 - In the following Problems, assume all convictions were entered after September 30, 1996 (the enactment date of IIRIRA).
Problem 22. Six years after his admission as an LPR, X swindled someone out of several thousand dollars and was later convicted of "obtaining property by false pretenses." The crime is punishable by up to 5 years in prison, and X received a sentence of one year, of which six months were suspended. Is he deportable?
Problem 23. Six years after being admitted to the United States as an LPR, Y committed the crime of "breaking and entering the dwelling of another." Y was convicted and received the maximum sentence of one year, but she was released from confinement after 4 months for good behavior. Is she deportable?
Problem 24. You have just received a frantic phonecall from your client, Z, whom you helped to obtain LPR status seven years ago. Z is in France, and is in some trouble. While on a 3-month summer vacation in Paris, Z was involved in a fight with some locals and was arrested by the police. Claiming Z had a knife (he denies it), the prosecutor charged him with assault with a deadly weapon, a felony punishable by up to twenty years in prison. Because Z is a French national, the authorities allowed him to remain at large pending a preliminary hearing at which he was ordered to appear. Calling the charge "bogus," Z did not show up at the hearing, choosing instead to leave town and spend the rest of his summer in the French Riviera. The police put out a warrant for his arrest. After further investigation, however, the police became convinced that Z had not had a knife and that in fact he had been acting only in self-defense. Still, they were upset at his failure to appear, and when he was apprehended a few days later in the Riviera, he was arrested and charged with failure to appear before a court pursuant to a court order.
Z was brought before a French court and pleaded guilty to the charged offense. The judge has given him a choice between paying a fine equivalent to about US $3500 or spending 15 days in jail. Z wants to know whether confinement would jeopardize his immigration status. He has called you because his French criminal lawyer knows nothing about U.S. immigration law. What advice will you give him?
The following Problems illustrate some of the time limits just discussed. To do them, reread the portions of INA §§ 212(a)(1)(A)(iv) and 237(a)(2)(B)(ii) that deal with drug addicts.
Problem 25. X, a noncitizen, entered the United States and then left. While away, she became addicted to heroin and then rehabilitated. Several years after her rehabilitation, Congress enacted what is now INA § 237(a)(2)(B)(ii). After that, she reentered the United States. Is she deportable?
Problem 26. After the enactment of INA § 237(a)(2)(B)(ii), noncitizen Y, in his native country, became addicted to heroin but rehabilitated. Then he entered the United States. Is he deportable?
Problem 27. After the enactment of INA § 237(a)(2)(B)(ii), noncitizen Z entered the United States. She then became addicted to heroin, but later she was rehabilitated. She then left the country. Now, two years later, she wants to come back. Is she admissible? If she is readmitted, will she be deportable?
CHAPTER 7 - RELIEF FROM DEPORTABILITY
PROBLEMS 1-3 - For purposes of all these problems, assume that the current (post-IIRIRA) version of INA § 240A is in force at all relevant times.
Problem 1. A was admitted to the United States as an LPR in June 1995. In June 1999, the INS issued a Notice to Appear for a removal hearing, alleging A had been convicted of a crime involving moral turpitude. The immigration judge terminated the removal hearing, ruling that the particular crime did not involve moral turpitude. In 2000, A took a 100-day summer vacation in Europe. In July 2002, he committed a drug offense (possession of cocaine), pleaded guilty, and was sentenced to probation. In August 2002, the INS issued a Notice to Appear for another removal hearing. This time, the immigration judge found A deportable for having been convicted of violating a law relating to a controlled substance. Is A eligible for cancellation of removal, part A?
Problem 2. In April 1995, B was admitted to the United States for one year on a business visitor visa. She overstayed, but in April 1997 she adjusted her status to that of LPR on the basis of her marriage to a United States citizen. (INA § 245(i) was then in effect.) In May 2002, B was found in possession of illegal amphetamines and three months later was convicted of that crime. An immigration judge has found her deportable. Is B eligible for cancellation of removal, part A?
Problem 3. C was admitted to the United States on an L-1 intracompany transferee visa in 1993. In February 1997 he married a United States citizen. In August 1997, with his authorized stay not having expired, he obtained adjustment of status as an immediate relative. In April 2001 the INS discovered that his marriage had been a sham and issued a Notice to Appear for a removal hearing. The INS alleged that C was deportable for having been inadmissible (on fraud grounds) at the time of adjustment of status. See INA § 237(a)(1)(A). In June 2001, the immigration judge ordered C removed, and in June 2002 the BIA affirmed. In September 2002, C moved to reopen for the purpose of applying for cancellation of removal, part A, alleging that by then he had accrued the required 5 years of LPR status. Is C now eligible for cancellation?
A, her husband, and their three young children were all admitted to the United States in October 1992 on H-1B visas (A as the principal, the others as accompanying spouse and children). In October 1998, all received adjustment of status to lawful permanent residence. Every summer, starting in 1993, the family has taken a three-week vacation overseas to visit relatives. In December 2002, the INS served all the family members with notices to appear, alleging all were deportable for having obtained adjustment of status while inadmissible, under INA § 237(a)(1)(A). All the family members would experience various unusually severe hardships if ordered removed. Will they be eligible for cancellation of removal?
PROBLEMS 5-6 - Before attempting these Problems, carefully review subsections 9(A) and 9(B) of INA § 212(a). Be prepared for some strange results.
Problem 5. X, a noncitizen, entered the United States without inspection. Eight months later he was apprehended. His wife, an LPR, had earlier filed a family-sponsored 2A petition on his behalf, and his priority date is likely to come up about two years from now. The INS has offered him voluntary departure in lieu of commencing removal proceedings. He calls you to ask whether he should accept the offer. What advice will you give him?
Problem 6. Now assume the same facts as in Problem 5, except that this time X was apprehended 14 months after entering. Would your advice change?
X, born in the Netherlands, immigrated from there to the United States, stopping for a week in Costa Rica en route. Several years later he became a naturalized United States citizen. To attain naturalization he had to take an oath renouncing his Dutch citizenship. See INA § 337(a)(2). (Naturalization is taken up on pages 1037-49 below. Assume for now that the law of the Netherlands gives full effect to such renunciations.) Three years ago, upon finding that X had misrepresented material facts in his naturalization application, a federal district court revoked his naturalization under INA § 340(a). X has now been ordered removed on grounds that are not pertinent here. X designated Costa Rica as the country to which he wished to be removed, but Costa Rica has refused to accept him. The Dutch government has indicated it will receive X, but X would prefer to go to Canada, which is also willing to take him. Given section 241(b)(2), does the immigration judge have the discretion to order X removed to Canada?
Immigration officers in Boston raid a restaurant at which undocumented immigrants are known to be employed. Officer Gehler spots a dishwasher and asks him whether he is a United States citizen. The dishwasher answers no. Gehler then asks him to produce his immigration papers. The dishwasher refuses to speak another word. Gehler places him under arrest. Assume that neither Officer Gehler nor any other INS employee has done anything unlawful. The INS wishes to institute removal proceedings. First, what inadmissibility or deportability grounds should it allege? Second, will the INS be able to meet the statutory standard of proof? Third, suppose the dishwasher had refused to answer the question about citizenship. Would the INS still be able to prove its case?
Discuss whether each of the following applicants is eligible for asylum:
Problem 1. Fanatical army officers staged a successful coup, overthrowing a democratically elected government. The new leaders, eager to purge the country of western influences, have begun a ruthless "relocation" campaign in which professionals are forcibly moved from the cities to rural areas to perform agricultural labor at subsistence wages. Lawyers have been particularly hard hit, since the new government sees them as the bulwark of the old capitalist establishment and also as a symbol of the rule of law. Your client, a lawyer, escaped and managed eventually to make her way to the United States border, where she applied for admission. She tells you that if she is sent back she will be forcibly relocated and required to do agricultural labor even though she is 55 years old, unaccustomed to such work, and suffering from a heart condition that would be life-threatening if she over-exerts. She also tells you, consistently with human rights reports, that those who resist relocation are taken away and never heard from again.
Problem 2. The government of a foreign country (a democracy) has lately been denouncing homosexuals, accusing them of immorality and of spreading AIDS. Spurred on by that rhetoric, private citizens have frequently attacked and looted homosexual business establishments throughout the country and have occasionally assaulted individuals who "seem gay." Your client tells you he lived and worked in an area of the capital that is widely known to be a gay neighborhood. He ran a bookstore that specialized in gay and lesbian books. Two doors down the street from his store a coffee shop with a gay clientele had been firebombed and several patrons killed. The next day, there had appeared on the door of your client's bookstore a note warning him to expect the same. He called the police. The officer with whom he spoke told him there was nothing the police could do. The officer added that sodomy was a criminal offense punishable by up to ten years in prison, that the government was vigorously enforcing that law, and that your client "had better think about that." As a matter of principle, your client will not disclose his sexual orientation. (5)
Problem 3. A woman asserts that in the culture of her country women are expected to be homemakers. Most people are generally hostile to the few women who work outside the home or attend college. She would like to attend college, but she cannot afford the tuition on her own and women are legally ineligible for the government education grants routinely awarded to qualified men.
Problem 4. A Protestant couple from a predominantly Roman Catholic country object to a law that prohibits the sale or possession of any artificial birth control device. Violations of the law are punishable by up to a year in prison. The couple has made a firm decision not to have children.
Problem 5. A twenty-year-old woman left her country, which is ruled by a despot whose armed forces routinely round up and execute anyone who speaks out in opposition. She has testified that she is consumed by hatred of her country's ruler, that because of the consequences of dissidence she forced herself to remain silent, and that she finally left the country because she knew that if she remained she would be unable to restrain herself any longer. She says her feelings have grown so intense that if she were sent back she knows she would have to speak her mind.
As the immigration judge in a particular case, you have reached the following conclusions: The applicant has a well-founded fear of persecution; it is slightly less likely than not that he will be persecuted if returned home; there is a third country (not the one designated by the applicant under INA § 241(b)(2)) that might be willing to take him, but at the time of your decision you cannot be sure whether it will do so; and there are some negative factors that leave you uneasy about granting asylum, but those negatives are not so strong that you would want to send him back to the country in which he fears persecution if you can help it. Realistically, what would you probably do?
Problem 7. Police detectives in a totalitarian country have taken A into custody. Although they have no evidence that he has committed any crime, they think he knows the whereabouts of a prominent criminal fugitive. A denies knowing anything about the fugitive, but his captors do not believe him. After several hours of fruitless interrogation, his captors tell him that if he doesn't cooperate they will confine him permanently, and then one night in the next year they will kill him in his sleep. "Try thinking about that for a while," they tell him. They also tell him (falsely) that they have already killed his family. It has now been eight months, and A is still in detention. Has he been tortured (a) according to CAT; and (b) according to the U.S. Senate?
Problem 8. The secret police of another totalitarian country, acting on the direct orders of the President, apprehend and arrest B, one of the leaders of a peaceful democratic resistance movement. They detain him in a 4' by 4' jail cell. Every night the guards awaken him two or three times, beat him, and administer excruciating electrical shocks. He is given only enough food and water to stay alive and is never allowed to leave his cell. They tell him this treatment will continue until he signs a statement publicly renouncing the resistance movement and discrediting the other leaders by accusing them of fabricated crimes. B refuses. After three years in detention under those conditions, the President instructs the police to release him if he agrees to leave the country.
Emaciated, dangerously weak, and psychologically defeated, B agrees. Upon his release he obtains funds from the resistance, makes his way to the United States, and enters surreptitiously with the help of a smuggler. One week later the INS apprehends B and initiates removal proceedings. B applies for asylum under INA § 208 and for relief under CAT. While proceedings are pending, B, desperate for cash, commits an armed robbery of a gas station. He is convicted and sentenced to five years in prison. (Note his offense is an aggravated felony under INA § 101(a)(43)(F)). In the meantime, the democratic resistance movement that B helped to lead has toppled the totalitarian regime and now leads a democratic government. Nonetheless the haunting memories of his imprisonment and torture at the hands of the secret police are overwhelming, and B wishes never to return. B is still serving his criminal sentence and the removal hearing is about to begin. Is there any relief for which B is eligible? Before answering, review INA §§ 208(b)(2)(A,B) and 241(b)(3)(B).
Problem 9. C, who lives in a rural region of a third-world country, has been relentlessly abused by her husband for the duration of their two-year-old marriage. The abuse has included dangerous physical beatings and violent sexual assaults, occurring several times per month. Her husband repeatedly threatens to make the assaults even more brutal if she ever tells anyone or tries to escape. In any event, he assures her, he knows enough people that he could easily hunt her down anywhere in the country. Her screams and her conspicuous bruises make her situation obvious to all observers, including the police, but spousal violence is commonplace in her village and is routinely overlooked.
C escapes to the United States and applies for both asylum under INA § 208 and relief under CAT. Will she succeed?
CHAPTER 10 - UNDOCUMENTED MIGRANTS
To do these Problems, you will need to consult the actual text of INA § 274A. Assume all hirings occurred after the enactment of IRCA (November 1986) unless specified otherwise.
Problem 1. A hired a noncitizen student who was authorized to work off campus up to 20 hours per week. A was aware of that limitation and initially respected it. As things got busier in the office, however, A occasionally asked the student to put in 30-hour weeks. The student obliged. Has A violated INA § 274A?
Problem 2. B, about to hire a noncitizen applicant, asks to see the documents required by IRCA. The applicant displays identification and says that he has a green card, but adds apologetically that he absentmindedly left it at home and would be glad to bring it in the next day. B believes the applicant and allows him to start work but tells him to be sure to remember to bring the green card. In fact the applicant is undocumented. B forgets that he has not verified the person's work authorization, and the employee continues on the job. What charges might be brought against B?
Problem 3. A B-1 business visitor with no employment authorization applies to C for a job. She displays proper identification and a document that shows she has been admitted as a business visitor. The document says nothing either way about employment. C's personnel officer, mistakenly believing that business visitors are allowed to work, attests to having examined the appropriate documents. What charges might be brought against C?
Problem 4. D, a homeowner, knows she will be out of town for the summer. She therefore hires Ken, a high school student who lives next door, to mow D's lawn throughout the summer. Ken, a United States citizen, agrees. He ends up mowing the lawn five times, for which D pays him $100 upon her return. D has known Ken since Ken was born and does not ask him to display any documents. Has D violated section 274A?
Problem 5. Benito was admitted to the United States in 1984 (before IRCA) on what was then an H-1 ("distinguished merit and ability") nonimmigrant visa, which permits employment. E hired him that year. Although Benito's authorized stay finally expired in 1990 (as E knew), he remained in the United States longer than that, all the time working for E. In January 1991 Benito left the United States for a three-month visit with family. He returned to the United States without inspection in April 1991, at which time he resumed the work he had been doing for E. He has remained on the job ever since. What charges might be brought against E?
Problem 6. F, the President of a small company, and Helen, a noncitizen employee, together consult you for legal advice. When Helen first applied to the company for a job, she showed the personnel officer a driver's license and a social security card. The latter bore a special message to the effect that it did not authorize employment. As Helen had hoped, the personnel officer did not notice that message. After three years on the job Helen has become a highly valued and respected employee. Two days ago she confessed to F that she was a noncitizen without work authorization and asked whether he would help her "become legal" by applying for labor certification. F would like to keep her on his staff, and your opinion is that her occupational skills would probably qualify her for labor certification. Having studied the material in this section, what advice would you give? In framing your answer, consider the substantive law, the practical consequences for all concerned, and the applicable ethical constraints.
Problem 7. G, a small company, hires John, a United States citizen, in 1985. In 1995, John formally and effectively renounces his United States citizenship. (That makes him a noncitizen. And since he has not been granted LPR status or permission to work, it also leaves him without authorization to work.) The manager of the company knows all this but keeps John as an employee because John is extremely good at what he does. It is now 2003. Is G subject to employer sanctions?
To do this Problem set, you will need to consult the actual text of INA § 274B. Assume all events occured after enactment (November 1986) unless specified otherwise. Assume also that every employer has more than three workers.
Problem 8. Employer A has a firm policy of hiring only United States citizens of Italian extraction--citizens because he wants to do his part to encourage naturalization, ethnic Italians because he is of Italian ancestry himself and enjoys the cultural bonds that he shares with his employees. A acknowledges that neither requirement has anything to do with the employee's ability to perform the job.
X (who happens to be of Italian descent) was lawfully admitted as an LPR in 1990. She became eligible for naturalization in 1995 and formally applied in December 1997. In January 1998, while her naturalization application was pending, she applied to A for a job and was turned down because she was not a citizen. Y, a United States citizen, applied at the same time and was rejected because he was not of Italian descent. Z, a United States citizen of Italian descent, got the job.
Does either X or Y have a claim under INA § 274B? As a policy matter, what is your reaction to the results?
Problem 9. Employer B, who has also adopted a citizens-only policy, fires W because W is an LPR. Unbeknownst to B, W had just applied for naturalization, a few days after becoming eligible. W tells B about his pending application, but B says "I wish you had told me that earlier. I would have hired you back immediately, but now I can't because I've just given your job to someone else." Does W have a claim against B?
Problem 10. Employer C has a personnel manager who will hire only those who can show either proof of United States citizenship or a green card (possessed by LPRs). V, a nonimmigrant with work authorization, is rejected because of that policy. Does she have a claim under INA § 274B?
Problem 11. An applicant of Latino appearance, qualified for the job, displays his green card to the personnel officer of employer D. The officer thinks the card looks a little bit odd but can't quite put her finger on what is bothering her about it. What should she do?
Problem 12. Employer E rejects job applicant T because T does not meet E's minimum height requirements. T can see no particular job-related reason for the height policy and believes it is a pretext for rejecting Latino applicants, whose average height is less than that of Anglo workers. Four months later T learns that both Title 7 of the Civil Rights Act and IRCA prohibit national origin discrimination. To complicate matters, T believes E had a workforce of somewhere between 13 and 17 employees at the time of the alleged discrimination, but T is not sure of the precise number. What advice would you give T?
CHAPTER 11 - CITIZENSHIP
PROBLEMS 1-3 (6)
Problem 1. Frank Alvarez and his sister Maria have just come to your office on a passport matter. Frank was denied a passport by the State Department's Passport Agency in Los Angeles, and he does not understand why - he has always considered himself a U.S. citizen. * * * You question Frank and Maria about their ancestry and learn the following facts. Frank was born in Mexico on May 3, 1941. Maria was born in Mexico on June 25, 1934. Their mother was born in the U.S. in 1917, and she is still a U.S. citizen. The mother went to Mexico in 1933 where she married their father and where she resided until 1942. At that time, she separated from the father and took the children to the U.S. where [Frank has] since resided. [Maria returned to Mexico on December 20, 1949 to stay with her father. She came back to the United States on December 20, 1960 and has lived here ever since.] (7) The father was born in Mexico in 1913. However, his father (their paternal grandfather) was born in [the United States] (8) in 1867. He moved to Mexico in 1875 and resided there for the rest of his life. The paternal grandmother was born in [the United States] in 1870 and moved to Mexico in 1876. * * *
[First, is either Frank or Maria a United States citizen? Second, try to figure out what assumptions the Passport Office probably made and why those assumptions would prompt it to deny a passport to Frank. Third, on those same assumptions, do you think the Passport Office would have issued a passport to Maria?]
Problem 2. Guillermo Schmidt, a Mexican citizen, was referred by a lawyer who was handling his business arrangements. Guillermo wanted to open a business in the communications field in the Los Angeles area. Included in his plans was the possible purchase of a Spanish-language radio station plus other similar investments. Guillermo came to us to see how he could arrange his immigration status to accomplish his business objectives. He was ready to present us with a pound or two of business and financial documents, but we first asked him questions about his ancestors. We learned the following.
Guillermo was born in Mexico in 1937. He had been in the U.S. on countless occasions, but apart from two years when he attended high school in Michigan he never lived in the U.S. His father was born in northwestern Mexico in 1901, and his mother was born in central Mexico. His paternal grandfather was born in New York in 1850, but he lived most of his youth in Sacramento and San Francisco, California. When the paternal grandfather married a Mexican national in 1890, his family disavowed him, and he moved with his wife to northern Mexico where he worked in the mining business. The paternal grandfather died suddenly in 1905, leaving his wife with five small children and one on the way. The wife then moved to the town of Nogales, Arizona, where she raised her children. She lived in Nogales the rest of her life, and died there in 1940.
Problem 3. In 1988 David contacted our office. * * * [H]e wanted to apply for permanent residence. [He and his wife, Mary, had spent their entire lives in Canada. Mary is there now, and David is here in the United States on a temporary work visa. Mary's paternal great-grandfather was born in Pennsylvania in 1842 and moved to Canada as a small child. His son (Mary's paternal grandfather) was born in Canada, where he remained his entire life except for a three-year stay in the United States from 1889 to 1892. In 1930 Mary's father was born, also in Canada. [Mary was born in Canada in 1953. In 1975, Mary's parents left Canada for the first time ever and moved permanently to the United States, where they continue to reside.] What advice would you give David?]
E-mail Professor Capriotti
CAPRIOTTI & Associates
Immigration - Nationality - Consular Process
Minnesota - Oregon - Canada - Europa
P.O. Box 2792, Portland, OR 97208-2792
Last Edited: 18 JAN 05