Removal & Deportation Defense

Deportation and Removal DefenseOne of the most difficult and highly complex areas of immigration law is Removal Proceedings, formerly known as Deportation Proceedings. Often an individual’s most important rights are at stake in these proceedings – their ability to live and work in the United States is at jeopardy. Their ability to come back to this country, or for that matter, even visit this country is often called into question, sometime for long periods of time, often for the duration of these individuals’ lives.

Hiring an experienced and knowledgeable immigration lawyer can make all the difference in the world. At The Law Offices of Grinberg & Segal, PLLC, it is our number one priority to protect our clients’ best interest by providing experienced, knowledgeable, and aggressive representation in removal or deportation proceedings, while making sure that no client of ours is unjustly deported or removed from the United States.

Lawful Admission

Lawful admission to the United States is rather important and, one would argue, fundamental concept of the U.S. immigration law because it rests on the historical foundation — the exclusive right of a sovereign country to control its borders. That right inevitably includes deciding who is allowed to enter into the country.

Inadmissibility on Health-Related Grounds

Prior to entering the United States in an immigrant status, or seeking adjustment of status (AOS) in the United States, all applicants for admission undergo a health screening. This screening, required under INA §212(a)(1) of the Immigration and Nationality Act, is intended to deem certain aliens with medical diseases — such as certain types of cancer, organ failure and before recently (2009) — HIV — inadmissible from entry into the United States.

Cancellation of Removal for Non-Lawful Permanent Residents Under INA § 240A(b)(1)

Effective since April of 1997, certain persons in the United States who are not lawful permanent residents (LPRs) who are facing removal proceedings are eligible to receive a cancellation of removal from the Attorney General (AG). Non-LPRs who receive cancellation of removal will then be eligible for adjustment of status. This article will explain the rules for eligibility for non-LPR cancellation under INA § 240A(b)(1).

Special Rule Cancellation of Removal for Battered Spouses and Children

The Violence Against Women Act (VAWA) contains special rules for cancellation of removal for non-lawful permanent resident (LPR) spouses or children of U.S. citizens (USCs) or LPRs who were subject to battery or extreme cruelty by the USC or LPR spouse or parent. The eligibility requirements for special rule cancellation for battered spouses and children are more lenient than for regular cancellation, making obtaining cancellation of removal generally easier for battered spouses and children of USCs and non-LPRs than for other non-LPRs. This article will explain the eligibility requirements for special rule cancellation for battered spouses and children, where they differ from the general rules for non-LPR cancellation, and advice for applying.

The ABC Settlement Agreement

The American Baptist Churches v. Thornburgh (ABC) Settlement Agreement was a class action settlement between a class of Guatemalan and Salvadoran nationals and the United States Government rendered in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on January 31, 1991. Guatemalans and Salvadorans who were physically present in the United States before or after September 19, 1990, and October 1, 1990 respectively and who met certain other requirements, are eligible for benefits under the ABC settlement. This article will explain the rules for eligibility and the benefits available for ABC class members.

Special Rule Cancellation of Removal or Suspension of Deportation Under NACARA § 203

Certain Salvadorans, Guatemalans, and Eastern Europeans may apply for special rule cancellation of removal under the old suspension of deportation rules, or suspension of deportation, pursuant to section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). Special rule cancellation or suspension under NACARA § 203 has many advantages over general non-LPR cancellation of removal and even over special rule cancellation under the Violence Against Women Act (VAWA). There are even certain scenarios where special rule cancellation or suspension may be sought affirmatively. If relief is granted, the beneficiary's status will be adjusted to that of lawful permanent resident (LPR). This article will explain who may benefit from the special cancellation rules under NACARA § 203, the application process, and the available benefits.

Unlawful Presence in the United States

Accruing “unlawful presence” in the United States may render a noncitizen inadmissible to the United States, and consequently ineligible to obtain nonimmigrant visas and adjustment of status to immigrant visas. Depending on the amount of unlawful presence accrued, a nonimmigrant may be barred from attempting to reenter the United States after departing for 3 years, 10 years, or permanently (see our article on the permanent bar for more details on that subject).

Permanent Bar - overview

In addition to the 3 and 10-year bars of inadmissibility for accruing unlawful presence in the United States, there is a more stringent bar of inadmissibility stemming from unlawful presence that is commonly called the “permanent bar.” The permanent bar of inadmissibility stems from accruing at least one year of unlawful presence in the United States and then subsequently attempting to reenter or reentering the United States without inspection. As its name suggests, the permanent bar is a far more daunting bar to inadmissibility than the 3 or 10-year bars.

Inadmissibility

Historically, the United States is a country of immigrants. Established by immigrants and developed by immigrants the USA has enjoyed both substantial benefits as well as serious setbacks associated with immigration into the country. This dichotomy eventually led to the need to determine who should be allowed to enter and stay in the USA. Congress enacted a number of laws to regulate the immigration process.

Conditional Bars to Establishing Good Moral Character (GMC) for Acts in Statutory Period

In order to be eligible for certain forms of relief from removal from the United States, such as voluntary departure and cancellation for non-Legally Permanent Residents (LPRs), the person seeking relief must demonstrate that he or she has been of “good moral character” (GMC) for the period of time for the relief requested (statutory period).

Expedited Removal

Under certain circumstances, an alien found inadmissible at the border may be subject to expedited removal. If an alien is subject to expedited removal, he or she will be removed without a hearing before an immigration judge. There are certain exceptions for aliens who would otherwise be subject to expedited removal if not for meeting the criteria for an exception. This article will discuss the grounds for expedited removal, the expedited removal process, and the circumstances in which an alien who would otherwise be subject to expedited removal may qualify for an exception.

Reinstatement of Removal

If an alien is found to have reentered the United States illegally after having been previously removed or having left under a grant of voluntary departure under a removal order, the alien may be subject to reinstatement of removal. Reinstatement of removal is a procedure where the Department of Homeland Security the previous removal order, and in its discretion, reinstates that prior removal order. Aliens ultimately subject to reinstatement of removal will not have the opportunity to have the reinstatement reviewed by an immigration judge. Where DHS is considering reinstatement of removal, an alien, depending on the facts of his or her situation, may have limited avenues to avoid reinstatement of removal.

Administrative Removal for Aggravated Felonies

Section 238(b) of the Immigration and Nationality Act (INA) contains an administrative removal procedure for non-lawful permanent resident aliens (LPRs) who are deportable due to a conviction for an aggravated felony. The removal procedure in 238(b) is a form of summary removal and as such, unless the alien either rebuts the charges or establishes eligibility for withholding of removal, will not be entitled to a hearing before a judge. This article will explain the administrative removal process in section 238(b) and describe the ways in which an alien who is charged under 238(b) may seek to avoid administrative removal.

When Permanent Residents Cannot be Considered to be Seeking Admission

With very limited exceptions, a person admitted for lawful permanent residence cannot be considered to be “seeking admission” into the United States. This means that an LPR, unless he or she falls under one of the exceptions in section 101(a)(13)(C) of the Immigration and Nationality Act (INA), cannot be charged with inadmissibility under section 212(a). Rather, in order to be placed into removal proceedings, such an LPR would have to be charged with deportability under section 237.

Vladimirov v. Lynch: Due Process Rights in Immigration Proceedings

On November 10, 2015, the United States Court of Appeals for the Tenth Circuit rendered a decision with regard to the due process rights of an alien in removal proceedings that were triggered by a charge of marriage fraud. In Vladimirov v. Lynch, No. 13-9595 (10th Cir. Nov. 10, 2015), the Tenth Circuit rejected numerous arguments by the petitioner, Vladimir Vladimirov, that is due process rights had been violated in proceedings. In this article, we will examine the facts of the case, the Tenth Circuit’s decision, and the general applicability of the result.

INS v. Rios-Pineda: The Authority of the Attorney General to Deny Motions to Reopen

The Supreme Court decision in INS v. Rios-Pineda, 471 U.S. 444 (1985) affirmed the Attorney General’s broad discretion to deny a motion to reopen deportation proceedings where a moving party can establish a prima facie (on its face) case for eligibility for relief. The holding in the case is applicable to motions to reopen removal proceedings to apply for cancellation of removal. This article will explore the facts of Rios-Pineda, the reasoning behind the Supreme Court decision, and its effect as lasting precedent today.

Matter of C-C- (1948): Precedent for When an Alien Cannot be Deported for an Overstay

In this article, we will look at a short precedent Board of Immigration Appeals (BIA) decision titled In the Matter of C-C-, 3 I&N Dec. 221. In the first section, we will reproduce the decision in its entirety. In the conclusion, we will discuss the reasoning behind the decision and its value as precedent for situations regarding visa overstays today.

Godfrey v. Lynch (8th Cir.): Determining When Alien Made False Claim of U.S. Citizenship on Form I-9

On January 22, 2016, the United States Court of Appeals for the Eight Circuit issued a precedent decision in Godfrey v. Lynch, —- F.3d —-, (8th Cir. 2016). The case concerned an alien who was found inadmissible under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) for making a false representation of citizenship to obtain benefits under the INA. The charge stemmed from the alien checking a box on the Form I-9 that indicated he was “a citizen or national of the United States.” The Eighth Circuit ultimately affirmed the Board of Immigration Appeals’ (BIA’s) decision that the finding that the alien had intended to represent himself as a “citizen” and not as a “national” was supported by substantial evidence.

Matter of Y-S-L-C-: Admissibility of Respondent Testimony

On November 23, 2015, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015). The Board held that it is inappropriate to apply the Federal Rules of Evidence requirements for expert testimony to an alien testifying about events that he or she has personal knowledge of, and furthermore that the Federal Rules of Evidence are not binding on immigration proceedings. The Board also held that when an Immigration Judge acts in a manner unbecoming of an Immigration Judge, the case may be remanded to a new Immigration Judge. In this article, we will review the facts and procedural history of the Matter of Y-S-L-C-, the issues at hand, the Board's analysis and decision, and the broader effects of the precedent decision going forward.

Matter of Castro-Lopez: Counting the Continuous Physical Presence for NACARA Cancellation

On December 2, 2015, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Castro-Lopez, 26 I&N Dec. 693. The BIA held that when an alien must meet a 10-year continuous physical presence requirement to satisfy the eligibility requirements for relief from removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), the 10-year period is measured from the time when the alien’s most recently incurred ground of removal rather than from his or her first incurred ground of removal, “at least where that ground is … listed in 8 C.F.R. 1240.66(c)(1). In this article, we will examine the facts of the Matter of Castro-Lopez, the Board’s reasoning in reaching its decision, and the effect of the precedent on applications for special rule cancellation of removal under NACARA.

Matter of Villalobos: Determining Whether Legalization Beneficiary Had Been Eligible for AOS in Proccedings

On March 10, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016). The decision concerned adjustment of status under section 245A of the Immigration and Nationality Act (INA) for applicants who entered the United States prior to January 1, 1982, and benefited from legalization also under 245A. The Board held that Immigration Judges have jurisdiction to determine whether an alien who adjusted to permanent resident status under section 245A(b)(1) was eligible for adjustment of status for purpose of determining the alien’s current removability and eligibility for relief from removal. Furthermore, the Board held that an alien who adjusted status through the legalization provisions in 245A must have been admissible when he or she applied for temporary resident status and again when he or she applied for adjustment of status under 245A(b)(1). Finally, the Board held that an alien who was inadmissible at the time he or she adjusted status under 245(b)(1) was not lawfully admitted for permanent resident and is ineligible for a waiver of inadmissibility under the old section 212(c) of the INA.

The Matter of M-H-Z-: No Duress Exception from the Material Support Bar

On June 9, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The issue question for the Board was whether there is an exception from the “material support bar” to asylum and withholding of removal if such material support was rendered under duress. The Board held that there is no duress exception to the material support bar. In this article, we will review the facts of the case, the Board’s analysis and decision, and the broader effects of the decision on asylum applications.

Eligibility for Statutory Withholding of Removal

An alien who is subject to removal proceedings may seek withholding of removal. Withholding of removal allows for an alien to seek relief from removal if his or her life or freedom would be threatened in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. Through the withholding of removal process, the alien may be granted relief through the statutory provisions found in section 241(b)(3) of the Immigration and Nationality Act (INA) or through the Convention Against Torture (either withholding of removal or deferral of removal). In this article, we will discuss the rules surrounding eligibility for statutory withholding of removal.

Eligibility for Withholding of Removal and Deferral of Removal under the Convention Against Torture

An alien may apply for withholding of removal in removal proceedings. Although asylum and withholding of removal are distinct forms of relief, an application for asylum within removal proceedings will automatically allow the alien to be considered for withholding of removal. An alien may only be granted withholding after a final order of removal is entered. An alien may be granted withholding of removal under the statutory provisions found in section 241(b)(3) of the Immigration and Nationality Act (INA) or through the Convention Against Torture. An alien may also be granted deferral of removal under the Convention Against Torture in lieu of withholding. In this article, we will discuss the rules surrounding eligibility for withholding of removal and deferral of removal under the Convention Against Torture.

Burden of Proof for Relief Under the Convention Against Torture

In order to demonstrate eligibility for withholding of removal or deferral of removal under the Convention Against Torture, an alien must demonstrate that it is “more likely than not” that he or she would be tortured in the country of intended removal. In this article, we will examine the applicable regulations and administrative and judicial precedent regarding meeting the burden of proof in order to demonstrate eligibility for relief under the Convention Against Torture.

Issues for Aliens Who Have Been Granted Deferral of Removal

An alien who demonstrates eligibility for withholding of removal under the Convention Against Torture, but who is ineligible to have his or her removal deferred due to being subject to a mandatory ground for the denial of withholding of removal, will instead be granted deferral of removal. An alien who is granted deferral of removal will have his or her removal temporarily deferred, but may remain subject to immigration detention or to removal to a third country where he or she would not be at risk of being tortured. In this article, we will examine several adjudicative issues for aliens who have been granted deferral of removal.

Grounds for the Mandatory Denial of Withholding of Removal

Section 241(b)(3)(B) of the Immigration and Nationality Act (INA) lists mandatory denial grounds for withholding of removal. An alien who would otherwise be eligible for statutory withholding of removal may be denied withholding if he or she is subject to a mandatory denial ground. An alien who is subject to a mandatory denial ground and who would otherwise be eligible for withholding of removal under the Convention Against Torture will be granted deferral of removal in lieu of withholding of removal. In this article, we will explore administrative and judicial precedent on the mandatory denial grounds.

Particularly Serious Crimes in the Withholding of Removal Context

Section 241(b)(3) of the Immigration and Nationality Act (INA) lists several mandatory denial grounds for withholding of removal. Among these is section 241(b)(3)(ii) of the Immigration and Nationality Act (INA), which encompasses a conviction for a particularly serious crime. In this article, we will examine administrative and judicial precedent surrounding the particularly serious crime mandatory denial ground to withholding of removal.

Serious Nonpolitical Crimes in the Withholding of Removal Context

Section 241(b)(3) of the Immigration and Nationality Act (INA) specifies several mandatory denial grounds for withholding of removal. Under section 241(b)(3)(iii), an alien for whom the Attorney General has serious reasons to believe committed a serious nonpolitical crime outside of the United States will be ineligible for withholding of removal. In this article, we will examine the administrative and judicial precedent regarding serious nonpolitical crimes in the withholding of removal context.

Relationship Between Order of Removal and Order of Withholding of Removal

On January 10, 2008, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). In its decision, the Board held that, when an immigration judge issues a decision granting an alien’s application for statutory withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) without a grant of asylum, the immigration judge’s decision “must include an explicit order of removal.” In this article, we will examine the underlying statutes, the facts of the case, and the significance of the precedent in the Matter of I-S- & C-S-.

Withholding of Removal for Aliens Subject to Expedited Removal (as aggravated felons) or Reinstatement of Removal

An alien who is subject to removal regular removal proceedings under section 240 of the Immigration and Nationality Act (INA) may apply for asylum and withholding of removal (under section 241(b)(3) and/or the Convention Against Torture) to seek relief from removal. In such cases, an application for withholding of removal may only be adjudicated in immigration court and may be then reviewed by the Board of Immigration Appeals (BIA) and by federal courts. However, under special removal proceedings found in sections 235(c), 238(b), and 241(a)(5) of the INA, an alien may be issued a final order of removal without having a hearing before an immigration judge. For these special removal situations, the INA and the implementing regulations provide special means for aliens to seek withholding of removal through a “credible fear interview” in the section 235(c) context and a “reasonable fear interview” in the section 238(b) and 241(a)(5) context. In this article, we will review reasonable fear determinations for aliens ordered removed under sections 238(b) or 241(a)(5) of the INA.

Applying for Withholding of Removal in Section 240 Removal Proceedings

Certain aliens in removal proceedings may be eligible for relief from removal in the form of an order of withholding of removal. An applicant who files an application for asylum shall have his or her application also considered for withholding of removal if the applicant is already in removal proceedings. However, an applicant may apply for withholding even if he or she is ineligible under statute to apply for asylum. An Immigration Judge may only grant withholding of removal once the alien has been issued a final order of removal. In this article, we will examine the rules for seeking withholding of removal in regular section 240 removal proceedings.

The Matter of M-J-K- (Mental Competency Safeguards in Immigration Proceedings)

On June 29, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016). The Board held that in immigration proceedings where there are mental competency concerns regarding the alien, the Immigration Judge has discretion to select and implement appropriate safeguards to allow the proceedings to go forward. The Board also held that on appeal, it will review such safeguards de novo (from the beginning). In this article, we will discuss the Board’s analysis and decision in the Matter of M-J-K- and what the precedent means going forward.

The Matter of J-S-S- (Burden for Determining Mental Competence in Immigration Proceedings)

The Board of Immigration Appeals (BIA) issued an important decision in Matter of J-S-S- on November 2, 2015. The decision addressed the following question: Who has the formal burden of proof in immigration proceedings to establish whether the alien (respondent) is mentally competent when indicia of incompetency are identified? In plain English: If there is evidence suggesting that a respondent in immigration proceedings is mentally incompetent, who has the burden to determine whether the respondent is mentally competent?

Matter of Richmond, 26 I&N Dec. 779 (BIA 2016): Analysis of Inadmissibility Provision for False Claim to Citizenship

On July 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision regarding inadmissibility for making a false claim to U.S. citizenship under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) in the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). The Board held that, under section 212(a)(6)(C)(ii)(I), an alien is inadmissible if there is direct or circumstantial evidence that he or she made a false claim to U.S. citizenship with the subjective intent of obtaining a purpose or benefit under the INA or under any other U.S. federal or state law where such U.S. citizenship actually matters with regard to the purpose or benefit sought. The Board held that while there is a distinction between achieving a purpose and obtaining a benefit under the provision, avoiding removal proceedings qualifies as a “purpose” under section 212(a)(6)(C)(ii)(I). In this article, we will examine the facts of the Matter of Richmond, the Board’s holding, and the effect of the new precedent decision going forward.

Matter of Richmond, 26 I&N Dec. 779 (BIA 2016): Facts and Decision

On July 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision regarding inadmissibility on the ground of making a false claim to U.S. citizenship under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) in the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). In this article, we will discuss the specific facts of the case and the Board’s decision based on its analysis of section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA). When prompted, before reading the section on the Board’s ultimate decision, we encourage you to first read our full article about the Board’s analysis of the statute in the Matter of Richmond, 26 I&N Dec. at 783-89. This article will illustrate how the Board’s reading of section 212(a)(6)(C)(ii)(I) applies to the facts of a specific case wherein an alien made a false claim to U.S. citizenship to achieve the “purpose” of avoiding removal proceedings under the INA.

Immigration Civil Enforcement Priorities (from Nov. 20 DHS Memorandum)

On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a memorandum detailing revised immigration enforcement priorities titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” The policy guidance took effect on January 5, 2015. The memorandum set forth three civil immigration enforcement priorities. The memorandum remains guidance for the Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the United States Citizenship and Immigration Services (USCIS). In this article, we will examine the background of the enforcement priorities, the three enforcement priorities, and the future for prosecutorial discretion in setting enforcement prioritization levels.

Immigration and Customs Enforcement FAQ on DHS Civil Enforcement Priorities

On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, released a Memorandum detailing three distinct levels of civil immigration enforcement priorities for the immigration components of the DHS. The priorities set forth in the Memorandum are guidance for the officers of the Customs and Border Protection (CBP), Immigrations and Customs Enforcement (ICE), and United States Citizenship and Immigration Services (USCIS). In this article, we will review an ICE FAQ about these enforcement priorities that was published in June of 2015.

Section 237 Deportability Statutes (237(a)(1): Aliens Inadmissible at the Time of Entry/AOS and Status Violators)

Section 237 of the Immigration and Nationality Act (INA), codified as 8 U.S. Code 1227, is titled “Deportable aliens.” This section provisions for the deportability of aliens who have been admitted into the United States. In addition to listing the deportability provisions, section 237 also lists waivers applicable to many of these provisions. In this article, we will provide a brief overview of section 237(a)(1) relating to aliens “[i]nadmissible at time of entry or of adjustment of status or [who] [violate] status.” This section will cover both the deportability provisions and the associated waivers, where applicable.

Section 237 Deportability Statutes (Section 237(a)(2): Criminal Grounds)

Section 237 of the Immigration and Nationality Act (INA), codified as 8 U.S. Code 1227, is titled “Deportable aliens.” This section provides for the deportability of aliens who have been admitted into the United States. In addition to listing the deportability provisions, section 237 also lists waivers applicable to many of these provisions. In this article, we will provide a brief overview of the clauses found in section 237(a)(2) related to deportability for criminal offenses, and the associated waivers, where applicable.

Foreign Terrorist Organization Designation for Al-Nursah Front Amended

The INA contains both inadmissibility and deportability provisions for those involved in a Foreign Terrorist Organization. In this article, we will examine the designation of the Al-Nursa Front with its many aliases as a Foreign Terrorist Organization. The Al-Nursa Front is a Foreign Terrorist Organization primarily active in Syria, but also active in Iraq and several surrounding states. On November 14, 2016, Secretary of State John Kerry amended the designation of the Al-Nursa Front to encompass aliases that were not included in its previous designations.

Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016): DHS May Be Granted Continuance to Properly Serve NTA on Minor

On December 16, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016) . In its decision, the Board held that when the Department of Homeland Security (DHS) seeks to re-serve a respondent with a notice to appear after the initial attempt at service was defective under the rules for serving minors under the age of 14, a continuance of proceedings should be granted for the purpose of re-serving the notice to appear. In this article, we will examine the facts and procedural history of the Board’s decision in the Matter of W-A-F-C-, its reasoning, and the effect of the new precedent decision going forward.

Scope and History of Section 212(f) Presidential Authority to Suspend/Restrict Entry by Proclamation

Section 212(f) of the Immigration and Nationality Act (INA) gives the President of the United States broad authority to implement immigration restrictions by proclamation. The statute allows the President to suspend the entry of any aliens or of a class of aliens or place restrictions on the entry of a class of aliens temporarily if he or she determines that the entry of such aliens would be detrimental to the U.S. interest. In this article we will examine the language of section 212(f), its scope, and previous uses of the statute as well as precedent case-law on the provision.

Section 212(f) on Suspension of Entry of Aliens Arriving on Non-Compliant Airliners

Section 212(f) of the Immigration and Nationality Act (INA) is split into two parts. The first part of Section 212(f) codifies the President of the United States’ broad authority to suspend the entry of any aliens or of any class of aliens if the President determines that such entry would be detrimental to the interests of the United States by presidential proclamation. The second part gives the Attorney General the authority to suspend the entry of aliens arriving on certain airliners that are not in compliance with applicable regulations relating to document fraud.

Trump Administration Enforcement Priorities (issued Jan. 25, 2017)

On January 25, 2017, President Donald Trump issued Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.” In this article, we will discuss the Executive Order’s provisions on removal priorities, and examine how the Executive Order may represent a change from the civil enforcement priorities issued under former President Barack Obama in November of 2014.

Overview of Two Kelly Memoranda on Implementing President Trump's Executive Orders

On February 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued two Memoranda that provide Department of Homeland Security (DHS) officers with authoritative guidance on the implementation of two immigration Executive Orders (EOs) issued by President Donald Trump on January 25, 2017. The Memoranda provide clarification on how the DHS will put President Trump’s immigration orders into practical effect. In this article, we will provide a brief overview of the Memoranda and the related EOs. In the final section of the article, we will provide a list of links to our comprehensive articles covering the key points of each Memorandum relating to new immigration policies.

Overview of the Kelly Border Security Memorandum (Trump EO)

On January 20, 2017, Secretary of Homeland Security John F. Kelly issued a Memorandum titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies.” The Memorandum provides guidance for Department of Homeland Security (DHS) officers in implementing the policies set forth in President Donald Trump’s Executive Order (EO) 13767 titled “Border Security and Immigration Enforcement Improvements.” The Memorandum covers various issues related primarily to border security. In this article, we will provide a general overview of the contents of the Memorandum.

Kelly Memorandum on Unaccompanied Minor Children Apprehended at the Border (Trump EO)

On February 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Department of Homeland Security (DHS) Memorandum titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” (“Border Memo”). The purpose of the Border Memo is to provide policy guidance regarding the implementation of President Donald Trump’s January 25, 2017, Executive Order 13767 titled “Border Security and Immigration Enforcement Improvements.” In this article, we will review the guidance of the Border Memo regarding the treatment of unaccompanied alien children who are encountered at the border.

Overview of the Kelly Interior Enforcement Memorandum (Trump EO)

On January 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Enforcement Memo”). The Interior Enforcement Memo provides guidance for Department of Homeland Security (DHS) officers in implementing President Donald Trump’s January 25, 2016 Executive Order (EO) 13768 titled “Enhancing Public Safety in the Interior of the United States.” In this article, we will assess each section of the Interior Enforcement Memo.

Differences Between President Trump's New Travel Executive Order and the Original

On March 6, 2017, President Donald Trump issued an Executive Order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States.” This Executive Order provides for the temporary suspension of immigration from six countries, cuts to the U.S. Refugee Program for 2017, and directs the implementation of various other policies. The new Executive Order, which becomes effective on March 16, 2017, revokes the January 27, 2017 Executive Order 13769, of the same name, and replaces it. In this post, we will provide a brief overview of the changes made by President Trump made in the new Executive Order from the first version.

Suspension of Entry For Nationals of Six Countries Under President Trump's March 6 Travel Order

On March 6, 2017, President Donald Trump signed an Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States” (“Travel Order”). This Executive Order revokes and replaces an Executive Order of the same name issued by President Trump on January 27, 2017. In this article, we will provide a comprehensive overview of the March 6, 2017 Travel Order as it pertains to the suspension of entry for individuals from six countries.

Deportability on Public Charge Grounds

The Immigration and Nationality Act (INA) contains a deportability provision for an alien who becomes a “public charge” within 5 years of entry into the United States when the alien cannot affirmatively show that he or she became a public charge for reasons that arose subsequent to entry. This provision affects aliens who are not exempt from the public charge ground of inadmissibility. In this article, we will examine the relevant statutes, agency guidance, and administrative precedent regarding the public charge deportability ground.

Second Circuit Rejects 5th and 8th Amendment Arguments Against Removal for Unlawful Presence in the United States

On March 27, 2017, the United States Court of Appeals for the Second Circuit issued a decision in Marin-Marin v. Sessions, 15-2074. The case concerned a petitioner who sought review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge ordering him removed from the United States. The petitioner sought review, arguing that immigration judges are required to determine whether removal is constitutionally proportionate to the grounds for removal. The Second Circuit rejected the petitioner’s argument and denied the petition for review on the basis that removal is not a punishment and thus not subject to proportionality review. In this article, we will examine briefly the facts of the case, the petitioner’s arguments, and the Second Circuit’s reasons for issuing the decision.

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017): Contested Motions to Administratively Close or Recalendar Proceedings

On April 18, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). In the Matter of W-Y-U-, the Board held that, when evaluating whether to administratively close or calendar immigration proceedings, the Immigration Judge must consider primarily “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” On this point, the Board clarified its published decision in the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). The Board also held that, in considering the appropriateness of administrative closure, an Immigration Judge may not consider whether an alien falls under the enforcement priorities of the Department of Homeland Security (DHS). In this article, we will examine the facts of the case, the Board’s reasoning and decision, and the likely effect of the Matter of W-Y-U- precedent going forward.