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Immigration Law 364A - 1/06

CONSIDERATIONS WHEN READING IMMIGRATION CASES and 

WHEN PREPARING ANSWERS TO PROBLEMS

CASES

• Year of Decision & Forum/Venue/Court/Body Making Decision 

• Facts of Case 

• Procedural History (comment on prior decisions & bodies making them) 

• Issues Presented 

• Respondent's Position 

• Government Position 

• Holding & Reasoning 

• Concurring Opinion/Reasoning  &/or Dissenting Opinion/Reasoning

PROBLEMS

When evaluating a fact situation, consider all of the following that are appropriate:

---- PERSONS OUTSIDE OF THE US (or being inspected at the border) ----

Is the person ADMISSIBLE?

• If not, why, what portion of INA 212 applies?
• Is there an EXCEPTION which applies?
• Are there WAIVERS available

If NOT INADMISSIBLE:

What visa classification would apply?

    If a NON-IMMIGRANT VISA:

•     Do they need to show NON-IMMIGRANT INTENT?
•     Do they otherwise qualify for the a NON-IMMIGRANT VISA classification? (Even if a visa was issued at the US Consul prior to their embarkation to the US)
•     If so, how?

    If they wish to IMMIGRATE:

•     Do they qualify for an IMMIGRANT VISA? If so, how?
•     Do they qualify as a REFUGEE?
•     Do they qualify for an 'other form' of admission? (Parole, etc.)

---- PERSONS INSIDE OF THE US ----

Do they qualify for a CHANGE of STATUS?   

•     Do they need to show NON-IMMIGRANT INTENT?
•     Do they otherwise qualify for the a NON-IMMIGRANT VISA classification?
•     If so, how?

Are they REMOVABLE?

If so, what area of the law (INA 212 and/or INA 237) applies?

• Criminal Activity?
• Keep in mind the 3 & 10 year bars for unlawful presence.
• Are there EXCEPTIONS which may apply?
• Are their WAIVERS which may apply?
• Is there DISCRETIONARY RELIEF available?
• Asylum?
• Cancellation part A, or part B?
• Voluntary Departure?
• Adjustment of Status
• Other relief (withholding, torture convention, etc.)?

Do they qualify for NON-JUDICIAL ADMISSION?

Prior to the commencement of removal proceedings, is there an 'affirmative' act which they may take?

• Adjustment of Status?
• Normal Adjustment
• L.I.F.E.
• Asylum?
• TPS?
• Parole?

Are they a US Citizen?

• US Citizenship is an absolute defense in removal proceedings
• If they are a US Citizen, how did they obtain it?
• Birth in US?
• Naturalization (keep the 3/5 year, physical presence, good moral character and other requirements in mind)?
• Are they a Derivative Citizen?
• How?
• Are there additional requirements which must be met to qualify/retain?

Have they LOST THEIR US CITIZENSHIP?

• If so, how?
• Voluntary renunciation?
• De-naturalization?
• Would they ever be eligible to regain US Citizenship?

---- EMPLOYER ISSUES ----

Paperwork (I-9) problems?

• If so, how and what fines/penalties apply?

Unlawful employment problems?

• If so, how and what fines/penalties apply?

Unlawful Discrimination problems? Which law applies?

• Number of employees appropriate?
• Type of Discrimination
• Penalties/sanctions?
• Private Action available?