A Guide for Immigration Advocates

Introduction & Acknowledgements
Table of Contents
Unit 1: Overview of Immigration & the Law
§ 1.1 A Nation with Borders
§ 1.2 Who Is a Citizen? Who Is an Alien?
§ 1.3 The Grounds of Inadmissibility
§ 1.4 What Can Happen to an Alien Who Is Inadmissible?
§ 1.5 The Grounds of Deportability
§ 1.6 What Can Happen to an Alien Who Is Deportable?
§ 1.7 Removal Proceedings: Admissibility, Deportability, Burden of Proof and “Expedited Removal”
§ 1.8 What Is a Lawful Permanent Resident?
§ 1.9 An Alien Who Is Inadmissible May Not Be Able to Immigrate; Waivers of Inadmissibility
§ 1.10 Immigration through a Family Visa Petition: INA §§ 203, 204
§ 1.11 Asylum: INA § 208
§ 1.12 Refugee Status: INA § 207
§ 1.13 Registry: INA § 249
§ 1.14 Amnesty: The Legalization and SAW Programs: INA §§ 245A, 210
§ 1.15 Cancellation of Removal for Non-Permanent Residents: INA § 240A(b)
§ 1.16 Immigration Status
§ 1.17 Applicants for Lawful Status
§ 1.18 Undocumented Immigrants
§ 1.19 What Is DHS?
§ 1.20 The Structure of the DHS Immigration Agencies
§ 1.21 CIS, ICE & CBP Offices and the Saga of the “A-File”
§ 1.22 How Does a Field Office Work?
§ 1.23 Immigration Court and the BIA: The Executive Office for Immigration Review
§ 1.24 The INA
§ 1.25 Agency Regulations
Further Information
Appendix 1-A
Appendix 1-B
Appendix 1-C
Appendix 1-D
Appendix 1-E
Unit 2: Advocate/Client Partnership & Interviewing Skills
§ 2.1 The Advocate/Client Partnership: What’s in It for Us?
§ 2.2 Creating a Partnership with Our Clients
§ 2.3 Building and Presenting a Case in Partnership with Our Clients
§ 2.4 The Client Meeting: Interviewing and Counseling Clients
Appendix 2-A
Appendix 2-B
Unit 3: Grounds of Inadmissibility & Deportability
§ 3.1 Overview of Admissibility, Deportability, Admission and Removal
§ 3.2 Health-Related Grounds: Communicable Diseases, Required Vaccinations Dangerous Disorders and Addiction and Abuse
§ 3.3 Alien Smuggling: Grounds of Inadmissibility and Deportability
§ 3.4 Visa Fraud
§ 3.5 Document Fraud: Ground of Inadmissibility and Deportability
§ 3.6 Insufficient Documentation
§ 3.7 False Claim to U.S. Citizenship
§ 3.8 Likely to Become a Public Charge
§ 3.9 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists
§ 3.10 Entry, Admission and Effective Dates
§ 3.11 Unlawfully Present in the United States without Being Admitted or Paroled
§ 3.12 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver
§ 3.13 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted
§ 3.14 Failure to Attend Removal Proceedings
§ 3.15 Past Removal or Deportation/Exclusion
§ 3.16 Summary of IIRIRA Inadmissibility Grounds
§ 3.17 Grounds of Deportability (Except Those Related to Crimes)
§ 3.18 Clients with Criminal Records
§ 3.19 What Is a Criminal Conviction?
§ 3.20 What Evidence Can the DHS Submit to Show a Conviction?
§ 3.21 What Is a Sentence for Immigration Purposes?
§ 3.22 How to Analyze a Past Conviction: The Categorical Approach
§ 3.23 Inadmissibility and Deportability Based on Drug Offenses
§ 3.24 Crimes Involving Moral Turpitude
§ 3.25 The Crime of Moral Turpitude Ground of Inadmissibility, Including the Petty Offense and Youth Exceptions
§ 3.26 The Moral Turpitude Ground of Deportability
§ 3.27 Firearms Offenses
§ 3.28 Aggravated Felonies
§ 3.29 Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment
§ 3.30 Other Grounds: Prostitution, Two Convictions with Five Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration
§ 3.31 Clearing Up a Criminal Record
§ 3.32 The Good Moral Character Requirement
Further Information
Appendix 3-A
Appendix 3-B
Appendix 3-C
Appendix 3-D
Appendix 3-E
Appendix 3-F
Appendix 3-G
Appendix 3-H
Appendix 3-I
Appendix 3-J
Appendix 3-K
Unit 4: Family Visas: Qualifying Family Relationships Eligibility for Visas & the State Department Visa Bulletin
§ 4.1 Overview of the Family Immigration Process: A Two-Step Process
§ 4.2 The Immediate Relative Category and the Definition of “Child” and “Spouse”
§ 4.3 K Visa
§ 4.4 Petitions under the Preference System: Definition of Siblings and Sons and Daughters
§ 4.5 The Preference Categories
§ 4.6 Derivative Beneficiaries
§ 4.7 How the Preference System Works
§ 4.8 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate
§ 4.9 Advising Your Client about When a Visa May Become Available
§ 4.10 Child Status Protection Act (CSPA)
§ 4.11 The V Nonimmigrant Visa
§ 4.12 When Is a Visa Petition Terminated or No Longer Good?
§ 4.13 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings
Further Information
Appendix 4-A
Appendix 4-B
Appendix 4-C
Appendix 4-D
Appendix 4-E
Unit 5: Family Visas: Submitting the Petition; Marriage Issues; VAWA
§ 5.1 Completing Government Forms
§ 5.2 Completing the Visa Petition, Form I-130
§ 5.3 The G-325A and Photograph: Required in a Petition for a Husband or Wife
§ 5.4 Documenting the Visa Petition
§ 5.5 What Documents Are Needed to Prove Family Relationship?
§ 5.6 Obtaining Documents in the United States to Show Family Relationship
§ 5.7 Obtaining Documents from Other Countries
§ 5.8 Making Proper Copies of Documents
§ 5.9 Making Certified Translations of Documents
§ 5.10 Documenting the Immigration Status of the Petitioner
§ 5.11 Filing the I-130 Packet
§ 5.12 CIS Challenges to a Marriage
§ 5.13 The Legal Standard for a Marriage
§ 5.14 Documentation to Show That a Marriage Is Bona Fide
§ 5.15 What Will Happen at the Marriage Fraud Interview?
§ 5.16 Preparing Your Client: Self-Defense Techniques for CIS Interviews
§ 5.17 Special Rules That Affect Spousal Visa Petitions
§ 5.18 “Self-Petitioning” of Abused Spouses and Children under the Violence Against Women Act (“VAWA”)
§ 5.19 Requirements for a VAWA Self-Petition for an Abused Child
§ 5.20 Requirements for a VAWA Self-Petition for an Abused Parent
§ 5.21 Procedures for Self-Petitioning under VAWA
Appendix 5-A
Appendix 5-B
Appendix 5-C
Appendix 5-D
Unit 6: Family Visas: Consular Processing & Waivers of Inadmissibility & Deportability
§ 6.1 The NVC, the U.S. Consulates and the Department of State
§ 6.2 How the DHS and the State Department Divide Responsibility in Visa Cases
§ 6.3 Initial Consular Processing at the NVC
§ 6.4 Obtaining Documents According to NVC Instructions and the FAM
§ 6.5 Getting Ready for the Interview
§ 6.6 What Will Happen at the Interview?
§ 6.7 What Happens after the Immigrant Visa Is Granted
§ 6.8 What to Do if Your Alien Registration Card Fails to Arrive
§ 6.9 Waivers of Grounds of Inadmissibility
§ 6.10 What Is a Waiver?
§ 6.11 What Is Discretion?
§ 6.12 How to Find the Waivers in the Act
§ 6.13 Waiver of Inadmissibility for Visa Fraud and Waiver of Deportability for Persons Inadmissible at the Time of Admission
§ 6.14 Waiver for Certain Crimes under INA § 212(h)
§ 6.15 Waiver of Inadmissibility/Exemption for Alien Smuggling
§ 6.16 Document Fraud Waiver of Inadmissibility
§ 6.17 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g)
§ 6.18 Waivers for Unlawful Presence, Past Removal and Other Related Immigration Offenses
§ 6.19 Procedure for Applying for a Waiver
§ 6.20 How Do You Establish Extreme Hardship?
Further Information
Appendix 6-A
Appendix 6-B
Appendix 6-C
Appendix 6-D
Appendix 6-E
Appendix 6-F
Appendix 6-G
Unit 7: Family Visas: Adjustment of Status & Conditional Residence
§ 7.1 What Is Adjustment of Status?
§ 7.2 Who Is Eligible for Adjustment of Status Based on a Family Petition?
§ 7.3 What Forms and Documents Are Needed to Apply for Adjustment of Status?
§ 7.4 The Application for Adjustment, Form I-485
§ 7.5 Form G-325A, Fingerprints, Photos, and Medical Exam
§ 7.6 Submitting the Adjustment Application
§ 7.7 The Effect of Leaving the Country
§ 7.8 What Will Happen at the Adjustment Interview?
§ 7.9 The Decision: Approvals and Denials
§ 7.10 Introduction: The Immigration Marriage Fraud Amendment Act
§ 7.11 What Is Conditional Permanent Residency?
§ 7.12 Who Is a Conditional Permanent Resident?
§ 7.13 Removal of the Condition on Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition”
§ 7.14 When to File the I-751 Joint Petition
§ 7.15 Completing the I-751 Joint Petition
§ 7.16 Application Procedure: Filing, Interview, Standard for Approval, Denials
§ 7.17 Termination of Conditional Residency by CIS during the “Testing Period”
§ 7.18 Introduction to Waivers of the I-751 Joint Filing Requirement
§ 7.19 When to File
§ 7.20 How to File a Waiver
§ 7.21 The “Good Faith” Waiver
§ 7.22 The Extreme Hardship Waiver
§ 7.23 The Battery or Extreme Cruelty Waiver
§ 7.24 Proof of Battery or Extreme Cruelty
§ 7.25 Additional Help for Battered Spouses and Children
§ 7.26 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died
§ 7.27 Dependent Sons and Daughters
§ 7.28 Special Situations Involving Conditional Residency and Waivers
Further Information
Appendix 7-A
Appendix 7-B
Appendix 7-C
Appendix 7-D
Appendix 7-E
Appendix 7-F
Appendix 7-G
Appendix 7-H
Appendix 7-I
Appendix 7-J
Unit 8: Legal Research for Immigration Practice
§ 8.1 What Is Legal Authority?
§ 8.2 Distinguishing Primary Law Sources from Secondary Research Sources
§ 8.3 Hierarchy in Legal Authority
§ 8.4 Sources of Legal Authority: The Constitution
§ 8.5 Sources of Legal Authority: Federal Statutes (The Immigration & Nationality Act)
§ 8.6 Sources of Legal Authority: Regulations
§ 8.7 Sources of Legal Authority: Cases
§ 8.8 Sources of Legal Authority: Internal Agency Operating Instructions
§ 8.9 Understanding the Code: The Case Citation System
§ 8.10 Citations in Judicial Decisions
§ 8.11 Citing the Immigration and Nationality Act
§ 8.12 Citing to the Code of Federal Regulations
§ 8.13 Research Tips for the Immigration and Nationality Act and the Regulations
§ 8.14 Other Primary Sources: Internal Operating Instructions
§ 8.15 Additional Tools for Research: Using Treatises and Other Secondary Sources
§ 8.16 Practical Tips for Legal Research
§ 8.17 Gaining Access to Library Materials
Further Information
Appendix 8-A
Appendix 8-B
Appendix 8-C
Appendix 8-D
Appendix 8-E
Appendix 8-F
Unit 9: Legal Writing & Appeals
§ 9.1 Writing Techniques for Persuasive Legal Writing
§ 9.2 Writing Clearly
§ 9.3 Accuracy
§ 9.4 Presenting the Facts in Legal Arguments
§ 9.5 Practical Tips for Written Communication with DHS and the Courts
§ 9.6 The Courts
§ 9.7 Overview of Administrative and Judicial Bodies
§ 9.8 Administrative Appeals of Immigration Cases
§ 9.9 Appeals of Immigration Cases in Federal Judicial Courts
§ 9.10 The Right to Appeal
§ 9.11 The Importance of Prompt Action on Denials
§ 9.12 Appeals and Motions to Reopen and Reconsider Compared
§ 9.13 Procedure for Appeals before the BIA
§ 9.14 Motions to Reopen/Reconsider in EOIR
§ 9.15 Appeals and Motions to AAO
§ 9.16 Who Is Qualified to File a Brief?
§ 9.17 Keeping Clients Involved in and Informed about Their Appeals
Appendix 9-A
Appendix 9-B
Appendix 9-C
Appendix 9-D
Appendix 9-E
Appendix 9-F
Appendix 9-G
Appendix 9-H
Appendix 9-I
Unit 10: The Removal Process
§ 10.1 Overview and Definition of Terms
§ 10.2 Deportability, Inadmissibility, Voluntary Departure and Types of Removal Proceedings
§ 10.3 Arrests, Issuance of the Notice to Appear and Order to Show Cause
§ 10.4 The Master Calendar Hearing: Beginning Removal Proceedings
§ 10.5 Penalties for Failure to Appear at an Immigration Hearing or Interview and Failure to Leave Pursuant to Voluntary Departure or a Removal Order
§ 10.6 After a Final Removal Order: Surrender and Removal
§ 10.7 Persons Who Return Illegally after Having Been Earlier Removed: “Reinstatement of Removal”
§ 10.8 Detention, Bonds and Procedure
§ 10.9 Bond Equities
§ 10.10 Preparing for the Bond Redetermination Hearing
§ 10.11 Posting the Bond
§ 10.12 Expedited Removal Proceedings under INA § 235
Further Information
Appendix 10-A
Appendix 10-B
Appendix 10-C
Appendix 10-D
Appendix 10-E
Appendix 10-F
Unit 11: Introduction to Cancellation of Removal under INA § 240A(b), (Former Suspension of Deporation) & Introduction to Evidence for Immigration Cases
§ 11.1 Overview of the Law
§ 11.2 Overview of Requirements and Procedure for Cancellation of Removal under INA § 240A(b)(1)
§ 11.3 Continuous Physical Presence
§ 11.4 Documenting Continuous Physical Presence
§ 11.5 Good Moral Character and Criminal Bars
§ 11.6 Introduction to Exceptional and Extremely Unusual Hardship
§ 11.7 Family Separation
§ 11.8 Hardship to the Applicant’s Children
§ 11.9 Community Ties
§ 11.10 Medical Conditions
§ 11.11 Conditions in the Country of Deportability
§ 11.12 Working with a Client and Her Family to Determine Hardship
§ 11.13 Putting It All Together
§ 11.14 Discretion, Judicial Review, and Abandonment of Application in Cancellation of Removal Cases
§ 11.15 Overview of the Law
§ 11.16 Definitions of Battery and Extreme Cruelty for VAWA Cancellation of Removal
§ 11.17 The Abuser’s Legal Status and Family Relationship under VAWA Cancellation
§ 11.18 Continuous Physical Presence under VAWA Cancellation
§ 11.19 Good Moral Character, Inadmissibility and Deportability Issues under VAWA Cancellation of Removal
§ 11.20 Extreme Hardship under VAWA Cancellation of Removal
§ 11.21 Children under VAWA Cancellation
§ 11.22 VAWA Cancellation Compared with VAWA Self-Petitioning
§ 11.23 Motions to Reopen
§ 11.24 What Is Suspension of Deportation and Who Can Qualify?
§ 11.25 Continuous Physical Presence in Suspension Cases
§ 11.26 Good Moral Character for Suspension of Deportation
§ 11.27 Hardship for Suspension of Deportation
§ 11.28 Discretion in Suspension of Deportation Cases
§ 11.29 What Is Evidence?
§ 11.30 Relevant and Irrelevant Evidence
§ 11.31 Analyzing the Strength of Evidence in Cancellation Cases
§ 11.32 How to Use Evidence
§ 11.33 Summary of Procedure
§ 11.34 Suspension of Deportation Benefits under NACARA
Appendix 11-A
Appendix 11-B
Appendix 11-C
Appendix 11-D
Appendix 11-E
Appendix 11-F
Appendix 11-G
Appendix 11-H