Immigration Law: A Primer

Michael A. Scaperlanda

Associate Dean for Scholarship and Research

Professor of Law

Gene and Elaine Edwards Family Chair in Law

University of Oklahoma College of Law

Federal Judicial Center

2009

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop educational materials for the judicial branch. While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the Board of the Federal Judicial Center.
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iii

Contents

Dedication v

Acknowledgments vii

Introduction 1

I. Administrative Structure 5

II. Judicial Review 7

A. The REAL ID Act’s Effect on Judicial Review 9

B. Board of Immigration Appeals Streamlining and Judicial Review 17

C. The Scope of Chevron Deference 20

III. Constitutional Framework 25

A. State Power Over Immigration and Noncitizens 26

1. Strict Scrutiny 27

2. Public Function Exception 28

3. Federal Authorization of State Discrimination 29

B. Federal Power Over Immigration and Noncitizens 30

1. Government Benefits 30

2. Criminal Prosecution 31

3. Substantive Immigration Law 32

4. Procedural Due Process 33

a. Due Process and Detention 35

IV. Admission Categories 39

A. Nonimmigrant Categories 39

B. Immigrant Categories 42

1. Family Reunification 42

a. Marriage 43

b. Parents, Children, Sons, and Daughters 44

2. Employment 46

a. Extraordinary Ability 47

b. Labor Certification 48

3. Diversity Immigrants 51

V. Grounds for Inadmissibility 53

A. Immigration Control 53

B. Political and National Security Grounds 57

C. Criminal and Related Grounds 61

D. Economic, Public Health, and Morals Grounds 65

VI. Admission Procedures 67

A. Expedited Removal of Arriving Aliens 68

B. Removal of Other Arriving Aliens 69
contents immigration law: a primer

iv

VII. Grounds for Deportation 73

A. Immigration Status Violations 73

B. Criminal Offenses 74

1. Crimes Involving Moral Turpitude 75

2. Aggravated Felonies 76

VIII. Relief from Deportation (and in Some Cases, Inadmissibility) 85

A. Cancellation of Removal Part A 86

B. Cancellation of Removal Part B 88

C. Section 212(c): Waiver of Inadmissibility (and Potentially Deportability) 

92

D. Other Forms of Permanent Relief 96

E. Voluntary Departure 99

IX. Removal Process 103

X. Asylum and Refugee Law, Withholding of Removal, and Convention Against 

Torture 109

A. Persecution 112

B. On Account of Race, Religion, Nationality, Membership in a Particular 

Social Group, or Political Opinion 115

1. Particular Social Group 119

2. Gender-Related Claims 122

C. Applying for Asylum, Withholding of Removal, and Convention Against 

Torture Relief 126

1. Legal Standard of Proof 128

2. Substantial Evidence in the Asylum Context 129

3. Corroborating Evidence 133

XI. The Intersection of Criminal Law and Immigration Law: Ineffective 

Assistance of Counsel in Criminal Proceedings 137

XII. Issues of Workplace and State-Assisted Enforcement 143

A. Employer Sanctions 143

B. Antidiscrimination Provisions 144

C. The Complex Interplay Between Employer Sanctions and the 

Antidiscrimination Provisions 145

D. Worksite Enforcement 148

E. State Assistance in Immigration Enforcement 149

For Further Reference 151

Glossary 153

Appendix: INA § 242, 8 U.S.C. § 1252 (2006) 157

Table of Cases 167
v

Dedication

In memory of my immigrant ancestors, including Christopher Bierman 

(arrived in Pennsylvania from Germany in 1754); Abraham Smelser 

(arrived in Texas–Republic of Mexico from the United States in 1829); 

Sarah and Henry Lonis (arrived in Texas–Republic of Mexico from the 

United States in 1830); Rafaela Adelina Sablich (arrived in the United 

States from Croatia in 1887); and Ivan (John Michael) Skaprlenda (arrived in the United States from Croatia in 1887).
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vii

Acknowledgments

I would like to thank my son, Christopher Scaperlanda, University of 

Texas Law School Class of 2009, David Prentice, University of Oklahoma College of Law Class of 2008, and Ellis Deweese, University of 

Oklahoma College of Law Class of 2010, for their invaluable assistance 

in completing this monograph. I am deeply indebted to the members 

of the small but growing community of immigration law professors. My 

life has been richly blessed by them, and I have learned much from 

them. My life and knowledge of the practical working of immigration 

law have also been blessed by the surprising number of former students who now labor in the immigration law vineyards. I am also indebted to David Martin, who wrote the predecessor to this volume 

twenty years ago. I would also like to thank the editorial staff at the 

Federal Judicial Center, especially Kris Markarian, as well as the outside reviewers for concrete suggestions that greatly improved the 

manuscript. Finally, a word of thanks to my wife, María, for her untiring support.
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1

Introduction

This monograph serves as an introduction to and overview of immigration law (and, to a lesser extent, the law governing noncitizens outside 

of the immigration context). A clear incongruity marks American immigration law and policy. We are, in a very real sense, a nation of immigrants. Our history testifies that we have generously taken in the 

“huddled masses yearning to breathe free.”1 For example, during the 

fifteen-year period from 1991–2005, the United States granted legal 

permanent residence to nearly 14 million people,2 more than four 

times the entire population of the state of Oklahoma. At times, however, racial, religious, and ideological biases have served as the primary building blocks of our immigration policy.3

For different reasons, the Supreme Court’s alienage jurisprudence 

contains a clear dichotomy.4 In one line of cases, the Supreme Court 

employs the plenary power doctrine, giving near total deference to 

Congress’s substantive immigration policy choices. In another line of 

cases, the Supreme Court employs strict scrutiny to strike down state 

laws discriminating against legal aliens. Compare Fiallo v. Bell,

5

 where 

the Court upheld a gender discriminatory provision of the Immigration 

and Nationality Act underscoring “the limited scope of judicial inquiry

into immigration legislation,”6 with Graham v. Richardson,

7 where the 

Supreme Court used strict scrutiny to strike down a state law that dis1. Emma Lazarus, The New Colossus, available at http://www.libertystatepark.

com/emma.htm.

2. See Department of Homeland Security, Office of Immigration Statistics, 2008 

Yearbook of Immigration Statistics 5, available at http://www.dhs.gov/xlibrary/assets/

statistics/yearbook/2008/ois_yb_2008.pdf.

3. See, e.g., Select Commission on Immigration and Refugee Policy, Staff Report: 

U.S. Immigration Policy and the National Interest 161–216 (1981); Kevin Johnson, The 

“Huddled Masses” Myth: Immigration and Civil Rights (2004).

4. See, e.g., Michael Scaperlanda, Illusions of Liberty and Equality: An “Alien’s” View of 

Tiered Scrutiny, Ad Hoc Balancing, Governmental Power, and Judicial Imperialism, 55 Cath. 

U.L. Rev. 5 (2005); Michael Scaperlanda, Partial Membership: Aliens and the Constitutional 

Community, 81 Iowa L. Rev. 707 (1996).

5. 430 U.S. 787 (1977).

6. Id. at 792 (“This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admissions of 

aliens.”) (internal quotation marks omitted).

7. 403 U.S. 365 (1971).
introduction immigration law: a primer

2

criminated against noncitizens, concluding that “classifications based 

on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”8 How the Supreme Court 

reconciles these lines of cases is addressed infra Part III. For now, we 

turn to a brief history of U.S. immigration law.

From the founding of the Republic until 1875, the only federal 

immigration legislation was the unpopular 1798 Alien and Sedition 

Act,

9

 which expired in 1800.10 Before 1875, states often imposed their 

own restrictions on immigration.11 In 1875, Congress began regulating 

various aspects of immigration. Over the next forty years, Congress 

created broad categories of excludable aliens, a narrower class of deportable aliens, and the beginnings of an immigration bureaucracy. 

Prostitutes, certain convicts, idiots, lunatics, the feebleminded, the insane, paupers, polygamists, epileptics, those suffering from certain 

contagious diseases, and persons likely to become public charges were 

among the excludable class. The exclusion of Chinese nationals (in 

1882) and anarchists (after the assassination of President McKinley) 

established the principle that noncitizens could be excluded based on 

race or ideology. This period also witnessed the first immigration laws 

(contract labor laws) designed to protect the U.S. labor market. 

To the qualitative restrictions on immigration, in 1921 Congress 

added numerical restrictions for the first time as a temporary measure. 

Numerical restrictions became a permanent part of the immigration 

landscape in 1924. Admissions were allocated by national origin under 

a formula that severely curtailed immigration from eastern and southern Europe, barred immigration by those coming from the Orient, and 

left immigration from the western hemisphere without numerical restriction.

In 1952, over the veto of President Truman, Congress enacted the 

McCarran-Walter Act,12 codifying and modifying existing immigration 

law. This act, designated the Immigration and Nationality Act (INA), 

8. Id. at 372.

9. Act of June 25, 1798, 1 Stat. 570.

10. For a more detailed historical overview, see 1 Charles Gordon, Stanley Mailman, 

& Stephen Yale-Loehr, Immigration Law and Procedure §§ 2.01–2.04 (1997).

11. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776–

1875), 93 Colum. L. Rev. 1833 (1993).

12. Pub. L. No. 82-414, 66 Stat. 163 (1952).
immigration law: a primer introduction

3

has been modified several times in the ensuing years and still governs 

immigration law. Major amendments to the INA came in 1965, including the elimination of racial and national-origin discrimination, which 

had been part of the quota formula from the beginning of numerical 

restrictions. Congress enacted comprehensive refugee legislation in the 

form of the Refugee Act of 1980.13 “It is now the principal domestic 

statutory law governing both overseas refugees and . . . noncitizens 

who have reached United States territory and seek either asylum or 

nonrefoulement.”14

Several pieces of immigration legislation became law in 1986, 

chiefly the Immigration Reform and Control Act of 1986 (IRCA)15 and 

the Immigration Marriage Fraud Amendments Act of 1986 (IMFA).16

Pursuant to IRCA, several million unauthorized aliens were legalized 

under what has generally been known as an amnesty for illegal aliens. 

The act also created a system of employer sanctions, which requires 

employers to check the identity and work authorization of all new employees. Employer sanctions were designed to eliminate job opportunities for unauthorized workers, thereby reducing if not eliminating a 

powerful immigration pull factor. To combat possible discrimination, 

the act forbids employers from looking beyond the face of documents 

showing identity and work authorization, and created an antidiscrimination regime to remedy potential discrimination. Under the IMFA,

those who immigrate based on a marriage that is less than two years 

old are conditional permanent residents for their first two years in the 

United States. Those convicted of aggravated felonies became deportable pursuant to the Anti-Drug Abuse Act of 1988.17 As we shall see, 

from its humble beginnings, this deportability ground has grown to 

dominate the field of criminal deportations.

The Immigration Act of 199018 ushered in an era of increased immigration as the annual ceiling for worldwide immigration increased to 

700,000, exclusive of the 125,000 refugee slots. Congress prioritized 

13. Pub. L. No. 96-212, 94 Stat. 102 (1980).

14. Stephen Legomsky & Cristina M. Rodríguez, Immigration and Refugee Law and 

Policy 883 (5th ed. 2009).

15. Pub. L. No. 99-603, 100 Stat. 3359 (1986).

16. Pub. L. No. 99-639, 100 Stat. 3537 (1986).

17. Pub. L. No. 100-690, § 5, 102 Stat. 4181 (1988).

18. Pub. L. No. 101-649, 104 Stat. 4978 (1990).
introduction immigration law: a primer

4

family unity, reserving a supermajority of the annual allotment for relatives of U.S. citizens and permanent resident aliens. The act reorganized and added new categories for employment-based immigration and 

created a new immigrant stream through a “diversity” lottery.19 It also 

added new, and amended existing, nonimmigrant categories and reorganized and updated the grounds for exclusion and deportation.

The Antiterrorism and Effective Death Penalty Act (AEDPA)20 and 

the Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA)21 were two of the major pieces of legislation affecting aliens 

and passed in 1996. In the wake of the Oklahoma City bombing, these 

acts were enforcement-oriented, expanding the categories of inadmissible and deportable aliens, restricting relief from deportation, streamlining removal and other immigration procedures, providing for increased detention of removable aliens, and attempting to strip courts of 

jurisdiction to review numerous immigration matters. Similarly, postSeptember 11, 2001, much of the immigration legislation has focused 

on enforcement and combating terrorism. The USA Patriot Act of 

200122 increased border security in both numbers and technology, expanded the definition of “terrorist” and “terrorist organization,” provided for increased interagency contact and cooperation, granted the 

Department of Justice greater powers to detain, and expanded the 

monitoring of foreign students. The Homeland Security Act of 200223

created the Department of Homeland Security (DHS) and abolished 

the Immigration and Naturalization Services (INS), dispersing its functions to the United States Citizen and Immigration Services (USCIS), 

U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs 

and Border Protection (CBP), all agencies within DHS. The REAL ID 

Act of 200524 further broadened the definition of “terrorism” and 

greatly restructured the process for judicial review of immigration decisions, eliminating general habeas jurisdiction but granting courts of 

appeals jurisdiction to hear constitutional claims and questions of law 

pursuant to petitions for review.

19. Diversity lottery is discussed infra Part IV.B.3.

20. Pub. L. No. 104-132, 110 Stat. 1214 (1996).

21. Pub. L. No. 104-208, 110 Stat. 3009 (1996).

22. Pub. L. No. 107-56, 115 Stat. 272 (2001).

23. Pub. L. No. 107-296, Title IV, Subtitles B, D, E, & F, 116 Stat. 2135 (2002).

24. Pub. L. No. 109-13, 119 Stat. 231 (2005).
5

I. Administrative Structure

Immigration law is governed largely by the Immigration and Nationality Act (INA)25 as amended over the years since its initial enactment in 

1952. Several federal administrative agencies implement the nation’s 

immigration laws. Until 2003, the Immigration and Naturalization Service (INS), located within the Department of Justice, played a central 

role. With the creation of the Department of Homeland Security (DHS) 

in the aftermath of September 11, 2001, the immigration bureaucracy 

was radically restructured, with major responsibilities given to DHS. 

The U.S. Citizenship and Immigration Services (USCIS), an entity 

within DHS, provides a wide range of immigration services and benefits 

to noncitizens seeking entry into or continued stay within the United 

States.26 Among other tasks, the USCIS adjudicates immigrant petitions, 

naturalization petitions, and asylum petitions through its headquarters 

in Washington, D.C., and its various field offices and service centers 

throughout the United States and across the globe. The two enforcement entities, both located within DHS, are the U.S. Customs and Border Protection (CBP)27 and the U.S. Immigration and Customs Enforcement (ICE).28 CBP provides border enforcement, including enforcement at interior points of entry. ICE is responsible for interior 

investigation and enforcement. 

The Department of State’s Bureau of Consular Affairs29 adjudicates 

visa applications at U.S. embassies and consulates throughout the 

world. The Department of Labor30 plays a central role in administering 

many of the employment-based immigrant and nonimmigrant categories for admission into the United States. The Office of Refugee Resettlement in the Department of Health and Human Services (HHS) is 

charged with the care of unaccompanied minors.31 HHS also coordi25. The McCarran-Walter Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) (as amended).

26. See generally http://www.uscis.gov/portal/site/uscis. 

27. See generally http://www.cbp.gov/. 

28. See generally http://www.ice.gov/index.htm. 

29. See generally http://travel.state.gov/visa/visa_1750.html. 

30. See generally http://www.foreignlaborcert.doleta.gov/. 

31. See generally http://www.acf.hhs.gov/programs/orr/programs/index.html. 
part i immigration law: a primer

6

nates the effort to deny entry to aliens on statutorily mandated healthrelated grounds.32

The Executive Office for Immigration Review (EOIR)33 resides in 

three units within the Department of Justice. Within the EOIR, the Office of the Chief Immigration Judge34 overseas the fifty-four immigration courts throughout the nation where immigration judges (IJs) conduct formal removal hearings, adjudicating whether to deny entry, deport, or grant relief to aliens facing removal. The Board of Immigration 

Appeals (BIA)35 hears appeals (mostly “paper reviews”) from IJ decisions and certain decisions made by the USCIS. The Office of the Chief 

Administrative Hearing Officer (OCAHO),36 within the EOIR, coordinates a team of administrative law judges who hear cases involving unauthorized employment and unlawful employment practices as mandated by the INA.

32. See generally http://www.cdc.gov/ncidod/dq/health.htm. 

33. See generally http://www.usdoj.gov/eoir/. In the fall of 2009, the National Association of Immigration Judges began an effort to have immigration judges reclassified as 

Article I judges, giving them independence from the Department of Justice. See Marcia 

Coyle, Immigration Judges Seek Article I Status, Nat’l L.J. (Aug. 10, 2009), available at

http://law.psu.edu/_file/immigrants/Marcia_Coyle_article.pdf.

34. See generally http://www.usdoj.gov/eoir/ocijinfo.htm. 

35. See generally http://www.usdoj.gov/eoir/biainfo.htm. 

36. See generally http://www.usdoj.gov/eoir/ocahoinfo.htm. 
7

II. Judicial Review

Questions of scope and standard of review will be addressed at various 

points throughout the monograph. This section focuses specifically on 

three aspects of judicial review: jurisdictional issues; the interplay between the BIA’s structural reforms and judicial review; and deference 

to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

37

(hereinafter referred to as “Chevron deference”). As to jurisdiction, 

since 1996 “Congress . . . tried to reduce the quantity and quality of 

judicial review of administrative removal orders” by attempting “to 

both narrow the appeals process and to bar categories of claims and 

claimants from federal court review of these administrative orders.”38

This congressional strategy did not work. “The litigation response was 

to argue about whether a person was within the barred group or making a disfavored claim.”39 Professor Stephen Legomsky reports some 

remarkable trends in judicial review of immigration cases. “In 2002 . . .

only 5% of the BIA decisions were being appealed to the federal courts. 

By November 2004 that figure was 25%. Conversely, in 2001 immigration cases accounted for approximately 3% of the combined dockets of 

the U.S. courts of appeals; by 2003, that figure had leaped to 15%.”40

“In 2006, immigration cases made up an astounding 40% of the entire 

Ninth Circuit docket.”41 After a 781% increase in filings of immigration 

cases in the Second Circuit, “44% of the Second Circuit’s total docket” 

was immigration cases for the year ending in June of 2004.

42 As Profes37. 467 U.S. 837 (1984).

38. Lenni Benson, Making Paper Dolls: How Restrictions on Judicial Review and the 

Administrative Process Increase Immigration Cases in Federal Courts, 51 N.Y.L. Sch. L. Rev. 

37, 41 (2006–2007).

39. Id.

40. Stephen Legomsky & Cristina M. Rodríguez, Immigration and Refugee Law and 

Policy 758 (5th ed. 2009) (citations omitted). “As of September 2005, the immigration 

cases represented 18% of the appellate civil docket.” Benson, supra note 38, at 39.

41. Legomsky & Rodríguez, supra note 40, at 758 (citations omitted).

42. Id. at 759. Professor Lenni Benson reports a “970% increase in the total number 

of cases seeking judicial review of immigration orders” in the decade between 1996 and 

2006. Lenni Benson, Seeking Review: Immigration Law and Federal Court Jurisdiction, 51 

N.Y.L. Sch. L. Rev. 3, 4 (2006–2007). For another excellent article on this subject, see John 

Palmer, Stephen Yale-Loehr, & Elizabeth Cronin, Why Are So Many People Challenging 

Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent 
part ii immigration law: a primer

8

sor Lenni Benson predicted in 1997, Congress’s “efforts to ‘streamline’

the removal of noncitizens from the United States has not created a 

more efficient structure. In fact, it has inadvertently returned to an historical model of judicial review in immigration proceedings that was 

inefficient in its form and often ineffective in expediting the removal of 

noncitizens.”43

Before the enactment of the Immigration and Nationality Act in 

1952, habeas corpus provided the vehicle by which aliens could have 

their deportation orders reviewed by federal district courts.44 Between 

1952 and 1961, the Administrative Procedure Act’s provisions for judicial review applied to immigration cases.45 In 1961, Congress amended 

the INA to provide for appeal of deportation orders directly to the 

courts of appeals, leaving exclusion orders to be reviewed by district 

courts in habeas proceedings.46

This regime remained fairly stable for the next thirty-five years until major immigration reform in 1996. Two statutes enacted that year—

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and 

the Illegal Immigration Reform and Immigrant Responsibility Act of 

1996 (IIRIRA)—purported to restrict judicial review by certain disfavored groups (e.g., many categories of criminal aliens) and of certain 

disfavored claims (e.g., discretionary denials) while restructuring the 

review process as a whole. These measures spurred a decade of litigation over the jurisdiction of federal courts to review immigration cases, 

Surge in Petitions for Review, 20 Geo. Immigr. L.J. 1, 94 (2005). The authors conclude: “our 

data support the hypothesis that appeal rate has increased as a result of a surge in BIA 

decisions that leave non-detained aliens with final expulsion orders and a fundamental 

shift in behavior among lawyers and their clients, causing them to focus their litigation in 

the courts of appeals for the first time. We think this fundamental shift was triggered by 

the high volume of final expulsion orders that began to be issued starting in March 2002 

and a general dissatisfaction with the BIA’s review.” Id.

In his 2005 Annual Report, Second Circuit Chief Judge John M. Walker, Jr. noted 

that “[i]n fiscal year 2001, we had 170 BIA appeals filed with our court. In 2005, we received 4,568 immigration appeals.” U.S. Courts Second Circuit Report 2005, available at

http://www.ca2.uscourts.gov/Reports/05/2005%20Annual%20Report%20-%20FINAL.htm.

43. Lenni Benson, Back to the Future: Congress Attacks the Right to Judicial Review of 

Immigration Proceedings, 29 Conn. L. Rev. 1411, 1417 (1997).

44. See Gerald Seipp, Federal Court Jurisdiction to Review Immigration Decisions: A Tug 

of War between the Three Branches, 07-04 Immigr. Briefings 1 (Apr. 2007).

45. Id.

46. Id.
immigration law: a primer part ii

9

the scope of such review, and the standard of review. Since much of 

this case law has been affected by the REAL ID Act of 2005, an extended exploration of the issues raised by the court-stripping provisions of AEDPA and IIRIRA and various solutions arrived at by the 

courts is beyond the scope of this monograph, although such a review 

may be helpful for putting into context the current situation facing the 

federal courts.47

The 1996 provisions caused much immigration litigation to shift 

from the courts of appeals via petitions for review to the district courts 

via habeas petitions. In Immigration and Naturalization Service v. St. 

Cyr,

48 the Supreme Court held that the 1996 amendments to the INA 

had not stripped the courts of habeas jurisdiction to review a question 

of law pertaining to whether certain statutorily provided discretionary 

relief was available for a deportable alien. Since the statute did not 

clearly foreclose habeas review, and since such foreclosure would raise 

serious constitutional questions with respect to the suspension of habeas corpus, the Court construed the statute as allowing review.49 In a 

footnote, the Court added: “As to the question of timing and congruent 

means of review, we note that Congress could, without raising any constitutional questions, provide an adequate substitute through the courts 

of appeals.”50

A. The REAL ID Act’s Effect on Judicial Review

With the REAL ID Act, Congress has done just this, amending the statute explicitly to substitute direct appeals to the courts of appeals for the 

unwieldy habeas process that had been a norm for ten years. INA § 242 

requires that an appeal of a removal order (except one that is issued in

an expedited removal) be filed directly with the courts of appeals.51

47. For an excellent review of this decade of litigation, see David McDonnell, Judicial Review Under the Immigration and Nationality Act: Habeas Corpus and the Coming of 

REAL ID (1996–2005), 51 N.Y.L. Sch. L. Rev. 75, 82–104 (2006–2007).

48. 533 U.S. 289 (2001).

49. Id. at 314.

50. Id. at 314 n.38.

51. 8 U.S.C. § 1252(a)(1) (2006). Limited habeas review remains available in the district courts—although limited to three specific and narrow issues—for those challenging 

an expedited removal order on one of the narrow grounds. Id. at (e).
part ii immigration law: a primer

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According to the Act, this petition for review is the exclusive method 

for getting a removal order before the court:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 

a petition for review filed with an appropriate court of appeals 

in accordance with this section shall be the sole and exclusive 

means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in 

subsection (e) of this section. For purposes of this chapter, in 

every provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any 

other provision of law (statutory or nonstatutory).52

Congress has placed several restrictions on this exclusive method 

of judicial review, stripping courts of jurisdiction to consider a number 

of aspects of the removal order. The Act strips courts of jurisdiction to 

review agency judgments with respect to the granting or denying of 

waivers of criminal and fraud grounds of inadmissibility under INA 

§ 212(h) or (i).53 Review of decisions regarding cancellation of removal 

pursuant to INA §§ 240A and 240B and review of agency discretionary 

decisions are also prohibited.54 The Act also strips courts of jurisdiction to review removal orders that are based on certain criminal 

grounds of inadmissibility or deportability.55 In what appears to be a 

recognition of the constitutional issues raised by the Supreme Court in 

52. INA § 242(a)(5), 8 U.S.C. § 1252(a)(1) (2006). See also 8 U.S.C. § 1252(a)(5) (2006) 

(pertaining to review of claims under the Convention Against Torture). As if to drive 

home the point, the Act also says: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from 

any action taken or proceeding brought to remove an alien from the United States under 

this subchapter shall be available only in judicial review of a final order under this section. 

Except as otherwise provided in this section, no court shall have jurisdiction, by habeas 

corpus under section 2241 of Title 28, or any other habeas corpus provision, by section 

1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to 

review such an order or such questions of law or fact.” 8 U.S.C. § 1252(b)(9) (2006). 

53. Id. § 1252(a)(2)(B).

54. Id.

55. Id. § 1252(a)(2)(C).
immigration law: a primer part ii

11

St. Cyr, Congress has specifically provided that the court-stripping provisions shall not “be construed as precluding review of constitutional 

claims or questions of law raised upon a petition for review filed with 

an appropriate court in accordance with this section.”56

INA § 242 provides fairly tight deadlines for aliens seeking review 

of removal orders.57 It also provides certain guidelines for the scope 

and standard of review:

Except as provided in paragraph (5)(B)–

(A) the court of appeals shall decide the petition only on the 

administrative record on which the order of removal is based,

(B) the administrative findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to 

the contrary,

(C) a decision that an alien is not eligible for admission to the 

United States is conclusive unless manifestly contrary to law, 

and

(D) the Attorney General’s discretionary judgment whether to 

grant relief under section 1158(a) [asylum] of this title shall 

be conclusive unless manifestly contrary to the law and an 

abuse of discretion.

No court shall reverse a determination made by a trier of fact 

with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B) [asylum], 1229a(c)(4)(B)

[relief from removal], or 1231(b)(3)(C) [withholding of removal] of this title, unless the court finds, pursuant to section 

1252(b)(4)(B) [B above] of this title, that a reasonable trier of 

fact is compelled to conclude that such corroborating evidence 

is unavailable.58

What is the practical effect upon the federal courts of INA § 242 as 

amended by the REAL ID Act? Perhaps the biggest impact is that the 

REAL ID Act forecloses all (or nearly all) habeas claims from those 

seeking review of removal orders, shifting work from the federal district 

courts to the courts of appeals and from habeas to petitions for review. 

The First Circuit said: “The plain language of these amendments, in 

56. Id. § 1252(a)(2)(D).

57. Id. § 1252(b)(1) & (3)(C).

58. Id. § 1252(b)(4).
part ii immigration law: a primer

12

effect, strips the district court of habeas jurisdiction over final orders of

removal, including orders issued prior to the enactment of REAL ID 

Act.”59 The Fifth Circuit said: “The REAL ID Act . . . supplies, in this 

context, the ‘clear statement of congressional intent to repeal habeas 

jurisdiction’ that the St. Cyr Court found lacking.”60 The REAL ID Act 

also specifically grants courts jurisdiction to review constitutional issues and questions of law even in cases where review is otherwise 

barred. The Third Circuit said:

Congress evidenced its intent to restore judicial review of constitutional claims and questions of law presented in petitions for 

review of final removal orders. This now permits all aliens, including criminal aliens, to obtain review of constitutional 

claims and questions of law upon the filing of a petition for review with an appropriate court of appeals.61

The Second Circuit said: “[A] primary effect of the REAL ID Act . . . is 

. . . to limit all aliens to one bite of the apple . . . [and thereby] streamline what the Congress saw as uncertain and piecemeal review of orders 

of removal, divided between the district courts (habeas corpus) and the 

courts of appeals (petitions for review).”62 One practitioner–

commentator has suggested that “it appears for the moment that the 

REAL ID Act has restored order to the INA’s judicial review procedures, and has eliminated the potential for confusion.”63

But many questions remain unresolved. Does INA § 242 provide an 

adequate alternative to habeas review in all cases, or will there still be 

some cases where habeas review is either dictated by statutory construction or constitutional mandate? What is a question of law that can 

be reviewed? Does it include so-called mixed questions of law and fact? 

What are discretionary acts of the immigration authorities? Do the 

courts, for example, have jurisdiction to review questions of statutory 

eligibility for discretionary relief? 

59. Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir. 2005).

60. Ramirez-Molina v. Ziglar, 436 F.3d 508, 512 (5th Cir. 2006).

61. Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).

62. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 n.3 (2d Cir. 2006) (internal 

quotation marks and citations omitted).

63. David M. McConnell, Judicial Review Under the Immigration and Nationality Act: 

Habeas Corpus and the Coming of REAL ID (1996–2005), 51 N.Y.L. Sch. L. Rev. 75, 110 

(2006–2007).
immigration law: a primer part ii

13

A few cases have addressed the argument that Congress has unconstitutionally suspended the writ of habeas corpus by stripping courts of 

habeas jurisdiction without providing an adequate and effective alternative. To date, all courts have found that the Act provides a constitutionally adequate substitute, at least as applied in the cases before 

them.64 In Mohamed v. Gonzales, Mohamed challenged the REAL ID 

Act as applied, arguing that the

court cannot consider his commitment order, because it is not 

part of the record before this court. Mohamed contends that essential to habeas review is the ability to offer evidence outside 

the record. Mohamed concludes that the Act does not provide an 

adequate and effective alternative to habeas review, and violates 

the Suspension Clause as applied to him.65

The Eighth Circuit noted that

Mohamed could have introduced the order during the removal 

proceedings, on appeal to the Board (when he was represented 

by counsel), or through a motion to reopen. . . . That Mohamed 

here failed to make such a motion, or otherwise to introduce the 

commitment order until now, does not make the remedy inadequate or ineffective as a matter of law.66

Since “Congress has created a remedy as broad in scope as a habeas 

petition, [i]t is an adequate and effective substitute to test the legality of 

a person’s detention.”67

Other cases have addressed the issue of what is a “question of law” 

for which judicial review has been preserved by INA § 242(a)(2)(D). 

Several courts of appeals have concluded, for example, that the timeliness of the filing of an asylum claim, which involves a determination of 

the date of entry by the alien into the United States, is a factual question for which there is no judicial review.68 But questions of great complexity lurk beneath the surface. 

The Second Circuit has said:

The term “constitutional claims” clearly relates to claims 

brought pursuant to provisions of the Constitution of the

64. See, e.g., Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir. 2006).

65. 477 F.3d 522, 525–26 (8th Cir. 2007) (internal citation omitted).

66. Id. at 526.

67. Id.

68. E.g., Yakovenko v. Gonzales, 477 F.3d 631, 635 (8th Cir. 2007).
part ii immigration law: a primer

14

United States. By contrast, “questions of law” does not have a 

similarly clear meaning, and the terms of the REAL ID Act provide no guidance as to the precise content of that phrase, which 

is subject to countless interpretations. Construed in the broadest sense possible, “questions of law” would encompass any 

question related to law or having any legal dimension—that is, 

anything pertaining to the work in which courts are engaged, including virtually all decisions in the immigration field.69

Finding the text ambiguous, the court “construe[d] the intent of 

Congress’s restoration under the REAL ID Act rubric of ‘constitutional 

claims or questions of law’ to encompass the same types of issues that 

courts traditionally exercised in habeas review over Executive detentions.”70 It suggested that “questions of law” encompassed more than 

statutory interpretation, possibly including statutory eligibility for discretionary relief, abuse of discretion, applying an improper standard 

when exercising discretion, and improperly failing to apply discretion.71 Even after the REAL ID Act, the courts remain without jurisdiction (in reviewing discretionary decisions and orders related to the removal of certain criminal aliens) to review “the correctness of an IJ’s 

fact-finding or the wisdom of his exercise of discretion.”72

But to determine which side of the divide (discretionary decision/fact-finding or questions of law) a claim falls on requires careful 

analysis. Fact-finding “flawed by an error of law, such as might arise 

where the IJ states that his decision was based on petitioner’s failure to 

testify to some pertinent fact when the record of the hearing reveals 

unambiguously that the petitioner did testify to that fact” is reviewable.73 Similarly, “a discretionary decision [that] is argued to be an 

abuse of discretion because it was made without rational justification 

or based on a legally erroneous standard” involves questions of law.74

In teasing out the line between “questions of law” and factual/discretionary issues, several cancellation-of-removal cases are in69. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 (2d Cir. 2006).

70. Id. at 326–27.

71. Id. at 327–28.

72. Id. at 329. See also, e.g., Rodrigues-Nascimento v. Gonzales, 485 F.3d 60, 62 (1st 

Cir. 2007).

73. Xiao Ji Chen, 471 F.3d at 329.

74. Id.
immigration law: a primer part ii

15

structive. Constitutional questions and questions of law that arise in the 

context of a claim for cancellation of removal are reviewable by the 

courts under the REAL ID Act.75 Courts have jurisdiction to review the 

agency’s fact-finding using the substantial-evidence standard for questions of statutory eligibility—the threshold issues—such as the question 

of good moral character and continuous physical presence.76 But determination as to whether the applicant has shown “exceptional and 

extremely unusual hardship” requires discretionary judgment, which is 

unreviewable.77 The circuits are split, however, over whether the “extreme cruelty” provision is discretionary or factual/legal.78

The issue of court jurisdiction to review the revocation of an immigrant visa has occasioned another circuit split. The question is 

“whether the decision to revoke a visa pursuant to 8 U.S.C. section 

1155 involve[s] the exercise of discretion, thus stripping [the courts of 

appeals] of jurisdiction to review the decision.”79 Following the Third80

and the Seventh Circuits,81 the Fifth Circuit held that review was precluded.

The statutory language indicates that the decision is left to the 

discretion of the Secretary [of Homeland Security]. The only 

language that indicates that the discretion could be limited is the 

“good and sufficient cause” phrase. However, when read in context and as a whole, the statute makes clear that Congress delegates to the Secretary the decision to determine what constitutes 

75. E.g., Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006).

76. See, e.g., Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850–51 (9th Cir. 2004) (continuous physical presence); Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2005) 

(whether character of alien fell within one of the “per se exclusion” characters, which bar 

finding of good moral character).

77. E.g., De La Vega v. Gonzales, 436 F.3d 141, 146 (2d Cir. 2006).

78. Compare Wilmore v. Gonzales, 455 F.3d 524, 526–29 (5th Cir. 2006) (discretionary), with Hernandez v. Ashcroft, 345 F.3d 824, 833–34 (9th Cir. 2003) (factual).

79. Ghanem v. Upchurch, 481 F.3d 222, 223 (5th Cir. 2007).

80. Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006).

81. El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004). See also Holy Virgin Prot. 

Cathedral v. Chertoff, 499 F.3d 658, 662 (7th Cir. 2007) (passage of the REAL ID Act does 

not alter outcome).
part ii immigration law: a primer

16

good and sufficient cause. . . . Congress’s intent is apparent: the 

good and sufficient cause is what the Secretary deems it to be.82

The Fifth Circuit concluded: “We interpret the phrase ‘for what he 

deems’ as vesting complete discretion in the Secretary. . . . To suggest 

otherwise and create a judicial standard or ‘clarification’ for good and 

sufficient cause would replace the Secretary’s judgment with judicial 

oversight clearly not contemplated by the statute.”83

In contrast, the Ninth Circuit found jurisdiction. In Ana Intern, 

Inc. v. Way, that court said that “[t]o put a purely subjective construction on the statute is to render the words ‘good and sufficient cause’

meaningless.”84 In that circuit, “[t]he rule is that any purely legal, nondiscretionary question that was a decision factor remains reviewable, 

whether or not the decision as a whole is discretionary.”85

The reasoning employed by the courts in the cancellation-ofremoval and visa-revocation contexts could also be applied to other 

cases where the agency exercises some level of discretion. Adjustment 

of status, removal of conditional residence status, bond determinations, motions for continuances, the ultimate asylum determination, 

and motions to reopen or reconsider, for instance, all involve discretion. But the exercise of discretion in these cases is subject to judicial 

review to the extent that the review petition raises constitutional questions or questions of law as defined by the courts.86

82. Ghanem, 481 F.3d at 224 (quoting the statute: “The Secretary . . . may, at any 

time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him . . .”).

83. Id. at 225.

84. Ana Intern, Inc. v. Way, 393 F.3d 886, 893 (9th Cir. 2004).

85. Id. at 895 (“When the [Secretary of Homeland Security] relies upon discrete legal 

classifications of an individual or an act to reach a decision, even where that decision 

involves a certain measure of discretion, the meaning of that particular legal classification 

nevertheless remains a reviewable point of law.”).

86. In its October 2009 Term, the Supreme Court will decide whether INA 

§ 242(a)(2)(B)(ii) precludes judicial review of BIA decisions denying motions to reopen 

immigration proceedings. See Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), cert. granted, 

77 U.S.L.W. 3594 (U.S. Apr. 27, 2009) (No. 08-911).
immigration law: a primer part ii

17

B. Board of Immigration Appeals Streamlining and Judicial 

Review

The dramatic increase in the federal courts of appeals’ immigration 

docket may be at least partially the result of lack of confidence in the 

administrative process occasioned by the BIA streamlining its review 

process.87 Historically, the BIA sat in three-member panels and issued 

written opinions in nearly every case.88 In 1999, the BIA began the 

process of affirming without opinion (AWO) in a small number of 

cases.89 Faced with lengthening backlogs, in 2002 the Attorney General 

promulgated a Board reform rule, which expanded the authority of a 

single BIA member to issue an AWO.90 In fiscal year 2007, AWOs accounted for 10% of the BIA’s decisions.91 Since the reform, the backlog, which had been 56,000 pending cases in 2002, including 10,000 that 

were more than three years in the queue, had been reduced to 27,000 

by June 2008, with 90% of the pending cases filed in fiscal years 2007 

and 2008.92

87. See John Palmer, Stephen Yale-Loehr, & Elizabeth Cronin, Why Are So Many 

People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical 

Analysis of the Recent Surge in Petitions for Review, 20 Geo. Immigr. L.J. 1, 94 (2005). 

88. See Department of Justice, Executive Office for Immigration Review, “Board of 

Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents,” 73 Fed. Reg. 34,654, 34,655 (proposed June 18, 2008)

[hereinafter EOIR, Proposed Rule].

89. Id.

90. Id. (“Under the current regulations, a single Board member will affirm an immigration judge’s decision without opinion when he or she is satisfied that the immigration 

judge’s decision reached the correct result, that any errors were harmless or nonmaterial, 

and that the issues on appeal are either (1) squarely controlled by precedent and do not 

require an application of precedent to a novel factual scenario, or (2) are not so substantial as to warrant the issuance of a written opinion in the case.”).

91. Id. at 34,655–56.

92. Id. at 34,656 (“At present, the principal cause of delay in the Board’s adjudications relates to the time required for preparation of transcripts of the immigration judge 

proceedings and other steps needed to complete the record. EOIR is already working to 

reduce those delays in response to another Attorney General directive.”).
part ii immigration law: a primer

18

The reforms have survived due process and administrative law 

challenges in the courts of appeals.93 But in several cases, the courts of 

appeals have criticized “some cases where the immigration judge’s 

conduct was intemperate or abusive, raising the concern that such 

conduct was not adequately addressed by the Board’s decisions, particularly in cases where the Board issued an AWO.”94 In response to 

the criticism, the Department of Justice undertook an extensive review 

of the immigration courts and the BIA, with the Attorney General ordering a reform of the reform at the conclusion of the review process.95

The BIA expanded from eleven members to fifteen members and, in 

June 2008, the Executive Office for Immigration Review proposed a 

rule that would “encourage the increased use of one-member written 

opinions to address poor or intemperate immigration judge decisions,

instead of issuing affirmances without opinion.”96

The success of the 2002 and 2008 reforms rests on a delicate balance—providing fair proceedings, efficiently. Annually, 220 immigration judges adjudicate 350,000 cases,

97 and the BIA issues over 40,000 

decisions.98 As the Second Circuit noted, “[t]he BIA’s ‘streamlining’

regulations were enacted in response to a crushing backlog of immigration appeals, the continuing existence of which prevents the speedy 

resolution of proceedings vitally important to thousands of aliens.”99

93. See, e.g., Blanco de Belbruno v. Ashcroft, 362 F.3d 272 (4th Cir. 2004); Zhang v. 

U.S. Dep’t of Justice, 362 F.3d 155 (2d Cir. 2004); Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir. 

2004); Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc).

94. EOIR, Proposed Rule, supra note 88, at 34,656. For further detail, see cases cited 

infra notes 206–07 and accompanying text.

95. Id. at 34,655.

96. Id. “The Board may consider exercising its discretion to issue a written order in 

those cases in which the immigration judge’s decision would otherwise meet the criteria 

for AWO, but the immigration judge exhibited inappropriate conduct at the hearing or 

made intemperate comments in the oral decision.” Id. at 34,656.

97. Id. at 34,659 n.3. This caseload takes a toll on immigration judges who “face significant risks of stress and burnout,” experiencing more burnout than prison wardens 

and doctors serving busy hospitals. See Stuart Lustig et al., Inside the Judges’ Chambers: 

Narrative Responses from the National Association of Immigration Judges Stress and Burnout 

Study, 23 Geo. Immigr. L.J. 57 (2008).

98. EOIR, Proposed Rule, supra note 88, at 34,659 n.3.

99. Guyadin v. Gonzales, 449 F.3d 465, 469 (2d Cir. 2006).
immigration law: a primer part ii

19

The percentage of BIA decisions issued AWO decreased from 36% 

in fiscal year 2003 to 10% in fiscal year 2007.100 The proposed rule, 

which will expand the ability of a single member of the BIA to issue an 

opinion, ought to reduce that percentage even further. 

The courts of appeals are split on the question of whether they 

possess the jurisdiction to review the choice of an AWO in a specific 

case. In Ngure v. Ashcroft, the Eighth Circuit said that “[s]everal considerations lead us to conclude that the BIA’s decision whether to employ the AWO procedure in a particular case is committed to agency 

discretion and not subject to judicial review.”101 First, the decisions 

over the allocation of an agency’s scarce resources are not typically 

subject to judicial review.102 Second, the streamlining regulations were 

a management tool and did not create substantive rights.103 “Third, the 

specific determinations that Ngure would have us review are not amenable to judicial consideration.”104 The Tenth Circuit agrees with the 

Eighth.105

The First Circuit disagrees. In Haoud v. Ashcroft, that court said

the Board’s own regulation provides more than enough “law” by 

which a court could review the Board’s decision to streamline. 

. . . [T]he Board cannot affirm an IJ’s decision without opinion if 

the decision is incorrect, errors in the decision are not harmless 

or immaterial, the issues on appeal are not squarely controlled 

by Board or federal court precedent and involve the application 

of precedent to a novel fact situation, or the issues raised on appeal are so substantial that a full written opinion is necessary.106

Therefore, the First Circuit concluded that the streamlining provisions 

were not beyond judicial review as committed to agency discretion.107

The Third and the Ninth Circuits follow this approach.108

100. EOIR, Proposed Rule, supra note 88, at 34,656. 

101. Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir. 2004).

102. Id.

103. Id. at 983–84.

104. Id. at 985.

105. Tsegay v. Ashcroft, 386 F.3d 1347, 1355–58 (10th Cir. 2004).

106. Haoud v. Ashcroft, 350 F.3d 201, 206 (1st Cir. 2003).

107. Id. (“Especially when the Board’s review of an IJ’s decision often hinges on Circuit court precedent, we are well-equipped, both statutorily and practically, to review a 

decision to streamline.”).
part ii immigration law: a primer

20

The question of whether the alien has exhausted the available administrative remedies has also become an issue with the BIA’s use of 

AWO and short opinions where the BIA merely adopts the opinion of 

the immigration judge. In Abebe v. Gonzales, the Ninth Circuit held that 

summary affirmance, without qualification, meant that the BIA had 

considered every issue litigated before the IJ; therefore, issues litigated 

before the IJ but not raised on appeal to the BIA passed through the 

BIA and could be raised on appeal.109

C. The Scope of Chevron Deference

“It is well-established that Congress delegated to the BIA the authority 

to promulgate rules, on behalf of the Attorney General, that carry the 

force of law ‘through a process of case-by-case adjudication.’”110

Therefore, Chevron111 deference is due the BIA’s precedential legal interpretations whether or not those decisions are inconsistent with past 

agency decisions.112 Additionally, “prior judicial construction of a statute trumps [a later] agency construction otherwise entitled to Chevron

deference only if the prior court decision holds that its construction 

follows from the unambiguous terms of the statute and thus leaves no 

108. Smriko v. Ashcroft, 387 F.3d 279, 292–93 (3d Cir. 2004); Chen v. Ashcroft, 378 

F.3d 1081, 1087–88 (9th Cir. 2004).

109. Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc). See also

Pasha v. Gonzales, 433 F.3d 530, 534 (7th Cir. 2005).

110. Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006) (quoting INS v. 

Aguirre-Aguirre, 526 U.S. 415, 425 (1999)). See also 8 U.S.C. § 1103(a)(1) (2006); 8 C.F.R. 

§ 1003.1(d)(1) (2006).

111. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

112. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 

(2005) (“Agency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework. Unexplained inconsistency is, at most, a reason for 

holding an interpretation to be an arbitrary and capricious change from agency practice 

under the Administrative Procedure Act. For if the agency adequately explains the reasons for a reversal of policy, change is not invalidating, since the whole point of Chevron

is to leave the discretion provided by the ambiguities of a statute with the implementing 

agency.” (internal quotations omitted)).
immigration law: a primer part ii

21

room for agency discretion.”113 Following this reasoning, the Tenth 

Circuit, in Hernandez-Carrera v. Carlson,

114 concluded that even the 

Supreme Court’s interpretation of an ambiguous statute is tentative, 

subject to a reasonable revision by the agency entrusted with the power 

to administer the statute.115 In Hernandez-Carrera, the Tenth Circuit 

concluded that the Supreme Court’s method, in Zadvydas v. Davis,

116 of 

narrowing the scope of the broad statute permitting detention pending 

removal of an alien from the United States in order to avoid constitutional difficulties “is not the only permissible one. The AG, pursuant to 

his statutory delegation of regulatory authority, has selected a different 

method of conforming the statute to the requirements of the Constitution.”117 The Fifth Circuit disagreed, concluding “that the Zadvydas

court resolved this ambiguity.”118

Given the many gaps yet to be filled in the immigration statutes, 

the large number of nonprecedent decisions issuing from the BIA,119

and the BIA streamlining provisions, the courts of appeals have grappled with how to apply appropriate deference to the BIA. United States 

v. Mead120 limits Chevron deference to those situations where it “appears that Congress delegated authority to the agency generally to make 

rules carrying the force of law, and that the agency interpretation 

113. Id. at 982. See, e.g., Zhang v. Mukasey, 543 F.3d 851 (6th Cir. 2008). See also Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007):

Although a three-judge panel is usually bound by the opinion of a prior three-judge 

panel, we have recognized an exception where the reasoning or theory of our prior circuit 

authority is clearly irreconcilable with the reasoning or theory of intervening higher 

authority, such that the prior three-judge panel’s decision has been “effectively overruled.” This is such a situation. The Supreme Court’s opinions in Chevron and Brand X

together hold that to the extent that [our prior decision] was grounded in the ambiguous 

language of the statute, the BIA’s reasonable discretionary construction of the statute in 

[its own later decision] has effectively overruled [our] contrary holdings.

Id. at 1236 n.7 (internal quotations and citations omitted).

114. 547 F.3d 1237 (10th Cir. 2008).

115. Id. at 1248.

116. 533 U.S. 678 (2001).

117. Hernandez-Carrera, 547 F.3d at 1248 (quoting Thai v. Ashcroft, 389 F.3d 967, 971 

(9th Cir. 2004) (Kozinski, J., dissenting from denial of en banc)).

118. Tran v. Mukasey, 515 F.3d 478, 484 (5th Cir. 2008).

119. The BIA issues over 40,000 decisions annually. See EOIR, Proposed Rule, supra

note 88, at 34,659. Forty were designated as “precedent decisions in 2007 and another 

twenty-five were so designated in 2006.” Id.

120. 533 U.S. 218 (2001).
part ii immigration law: a primer

22

claiming deference was promulgated in the exercise of that authority.”121 Nonprecedential interpretation made by an IJ or the BIA is subject to Skidmore122 deference, which means that a court is bound to follow the interpretation only if that interpretation is found persuasive.123

Courts have held that Chevron deference is not due an IJ interpretation that is only summarily affirmed by the BIA.124 In explaining its 

conclusion, the Second Circuit said:

[W]ere we to accord Chevron deference to non-binding IJ statutory interpretations, we could find ourselves in the impossible 

position of having to uphold as reasonable on Tuesday one construction that is completely antithetical to another construction 

we had affirmed as reasonable the Monday before. Such a scenario cannot be countenanced in a system of law.125

The Seventh Circuit, relying on INS v. Aguirre-Aguirre,

126 concluded 

that the decision of a single BIA member was entitled to Chevron deference where the BIA member “provided reasoning, albeit brief, to 

which [the court could] defer.”127 The Ninth Circuit came to the opposite conclusion and refused to grant Chevron deference to the unpublished decision of a single BIA member.

128 That the decision was made 

by a single BIA member, and that it was unpublished, provided independent justifications for denying Chevron deference.129 The Ninth Circuit distinguished Aguirre-Aguirre, noting that it was decided prior to 

121. Id. at 226–27. See also Brand X, supra note 112.

122. Skidmore v. Swift & Co., 323 U.S. 134 (1944).

123. See, e.g., Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir. 2006).

124. Miranda Alvarado v. Gonzales, 449 F.3d 915, 924 (9th Cir. 2006); Lin v. U.S. 

Dep’t of Justice, 416 F.3d 184, 187 (2d Cir. 2005).

125. Lin, 416 F.3d at 190.

126. 526 U.S. 415, 425 (1999) (“In addition [to Chevron deference], we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’”).

127. Gutnik v. Gonzales, 469 F.3d 683, 690 (7th Cir. 2006).

128. Garcia-Quintero, 455 F.3d at 1012–13. See also Rotimi v. Gonzales, 473 F.3d 55, 

57–58 (2d Cir. 2007).

129. Garcia-Quintero, 455 F.3d at 1012–13. “The BIA’s Practice Manual reiterates this 

requirement that three-member panels decide precedential cases.” Id. at 1013. 

“[A]ccording to the Board’s own internal policies, unpublished decisions are binding on 

the parties to the decision but are not considered precedent for unrelated cases.” Id. (internal quotations omitted).
immigration law: a primer part ii

23

Mead and that “the unpublished order in Aguirre-Aguirre relied on a 

statutory interpretation . . . that the BIA had adopted in an earlier precedential decision.”130

The courts have also faced the issue of how to proceed with questions of statutory interpretation in the absence of guidance from the 

BIA. In INS v. Orlando Ventura, the Supreme Court said:

Generally speaking, a court of appeals should remand a case to 

an agency for decision of a matter that statutes place primarily in 

agency hands. This principle has obvious importance in the immigration context. The BIA has not yet considered the “changed 

circumstances” issue. And every consideration that classically 

supports the law’s ordinary remand requirement does so here. 

The agency can bring its expertise to bear upon the matter; it can 

evaluate the evidence; it can make an initial determination; and, 

in doing so, it can, through informed discussion and analysis, 

help a court later determine whether its decision exceeds the 

leeway that the law provides.131

Following Ventura and Gonzales v. Thomas, the Second Circuit remanded an asylum case to the BIA, offering the agency the opportunity 

to exercise its mandate and expertise to formulate uniform rules. In 

Ucelo-Gomez v. Gonzales,

132 the Second Circuit faced the question of 

whether “affluent Guatemalans” constitute a “particular social group” 

for asylum purposes.133

The BIA has not decided whether affluent Guatemalans constitute a “particular social group” within the meaning of the INA. 

Nor has the BIA decided the scope of the statutory term in a fact 

context sufficiently analogous to those presented here that we 

can rule now with assured confidence that petitioners are or are 

not part of a particular social group. Because there is no basic 

asylum eligibility decision by the BIA, we remand.134

130. Id. at 1014.

131. INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002). See also Gonzales v. Thomas, 

547 U.S. 183, 186–87 (2006).

132. 464 F.3d 163 (2d Cir. 2006).

133. For further discussion of what constitutes a “particular social group” for asylum purposes, see infra Part X.B.1.

134. Ucelo-Gomez, 464 F.3d at 170. See also Velazquez-Herrera v. Gonzales, 466 F.3d 

781, 783 (9th Cir. 2006) (“Given that the Board has twice touched upon the issue of child 

abuse without authoritatively defining the term, and that the Board’s two definitions are 
part ii immigration law: a primer

24

The court noted that although the BIA remains free on remand to issue 

a precedential or nonprecedential ruling, it hoped that the BIA would 

provide precedential guidance because of “a press of cases raising 

similar questions in this Court, in the BIA, and before immigration 

judges; [therefore] the common project of deciding asylum cases 

promptly will be advanced by prompt guidance.”135

not consistent with each other, we think it prudent to allow the BIA in the first instance 

to settle upon a definition of child abuse in a precedential opinion.”).

135. Ucelo-Gomez, 464 F.3d at 172. The court gave the BIA forty-nine days to issue a 

responsive opinion. Id.
25

III. Constitutional Framework

The Constitution expressly grants Congress the authority to regulate 

foreign commerce136 and to adopt a uniform rule of naturalization.137

There is, however, no express immigration or alienage power enumerated in the Constitution. Who has the authority to regulate noncitizens 

generally and the admission, exclusion, and deportation of noncitizens 

more specifically? What is the scope of that authority? On these issues, 

the constitutional text is silent. 

The Supreme Court has concluded that the immigration power is 

plenary and rests in the hands of the political branches of the federal 

government, stating repeatedly “that ‘over no conceivable subject is the 

legislative power of Congress more complete than it is over the admission of aliens.’”138 And “[w]hen Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.”139 From 

the beginning of its immigration jurisprudence, “the Supreme Court 

has recognized the power to exclude aliens is ‘inherent in sovereignty, 

necessary for maintaining normal international relations and defending 

the country against foreign encroachments and dangers—a power to be 

exercised exclusively by the political branches of government.’”140 This 

136. U.S. Const. art. I, § 8, cl. 3.

137. Id. at cl. 4.

138. E.g., Padilla-Padilla v. Gonzales, 463 F.3d 972, 978 (9th Cir. 2006) (quoting Fiallo 

v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks deleted)). 

139. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). 

140. Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (quoting The 

Chinese Exclusion Case, 130 U.S. 581, 609 (1889)).
part iii immigration law: a primer

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“plenary power”141 over immigration encompasses questions of expulsion and deportation as well as admission and exclusion.142

Although the Supreme Court grants extreme deference to Congress 

and the executive branch with respect to the review of substantive immigration law, the jurisprudence governing the constitutional rights of 

noncitizens is nuanced and complex. In addition to substantive constitutional issues in the immigration context, courts address an array of 

procedural due process questions as well as substantive constitutional 

questions outside the context of admission, exclusion, and deportation 

of noncitizens. The following section explores those issues.

A. State Power Over Immigration and Noncitizens

States have no immigration power,143 and local laws can be preempted 

by the federal government’s immigration power.144 “But the [Supreme] 

Court has never held that every state enactment which in any way deals 

with aliens is a regulation of immigration and thus per se pre-empted 

by this constitutional power, whether latent or exercised.”145

141. For a sampling of the abundant scholarly literature on the plenary power doctrine, see, e.g., Juliet Stumpf, Citizens of An Enemy Land: Enemy Combatants, Aliens, and 

the Constitutional Rights of the Pseudo-Citizen, 38 U.C. Davis L. Rev. 79 (2004); Peter J. 

Spiro, Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339 (2002); Gabriel J. Chin, 

Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998); Stephen H. Legomsky, Ten More Years of Plenary Power: 

Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925 (1995); Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 Wis. L. Rev. 965 (1993).

142. E.g., Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893) (“The right of a 

nation to expel or deport foreigners . . . rests upon the same grounds, and is as absolute 

and unqualified as the right to prohibit and prevent entrance into the country.”), quoted

in Kay v. Reno, 94 F. Supp. 2d 546, 551 (M.D. Pa. 2000); Taniguchi v. Schultz, 303 F.3d 950, 

957 (9th Cir. 2002).

143. Herrera-Inirio v. INS, 208 F.3d 299, 307 (1st Cir. 2000) (“In short, immigration is 

uniquely a matter of federal, not local, concern.”).

144. Id. at 307–08 (“Because Congress possesses plenary authority over immigrationrelated matters, it may freely displace or preempt state laws in respect to such matters,” 

disallowing state “legislative choices respecting subjects the States may consider important.”).

145. DeCanas v. Bica, 424 U.S. 351, 355 (1976).
immigration law: a primer part iii

27

1. Strict Scrutiny

The general rule, laid down in Graham v. Richardson,

146 is that state 

discrimination will be strictly scrutinized because “classifications based 

on alienage, like those based on nationality or race, are inherently suspect . . . Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.”147 Using strict scrutiny, the Supreme Court struck down state classifications that denied permanent resident aliens, or some subset of this 

group, welfare benefits,148 college financial aid,149 the opportunity to 

compete for state civil service jobs,150 and the opportunity to work as 

an attorney,151 civil engineer,152 and notary public.153

The Fifth Circuit, however, has distinguished between permanent 

resident aliens and resident nonimmigrant aliens, concluding that the 

latter are not members of a suspect or quasi-suspect class entitled to 

heightened judicial review. The plaintiffs in LeClerc v. Webb154 unsuccessfully challenged a Louisiana bar rule that made nonpermanent 

resident aliens ineligible for law licensure. After determining that the 

Graham strict scrutiny standard was inapplicable, the court upheld the 

Louisiana rule using the rational basis test.155 Seven judges dissented 

from the denial of a petition for rehearing en banc, concluding that 

“the court reache[d] [its] result by judicially crafting a subset of aliens, 

scaled by how it perceives the aliens’ proximity to citizenship. This is a 

bold step not sanctioned by Supreme Court precedent.”156

146. 403 U.S. 365 (1971).

147. Id. at 372–73.

148. Id. at 376.

149. Nyquist v. Mauclet, 432 U.S. 1 (1977).

150. Sugarman v. Dougall, 413 U.S. 634 (1973).

151. In re Griffiths, 413 U.S. 717 (1973).

152. Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976).

153. Bernal v. Fainter, 467 U.S. 216 (1984).

154. 419 F.3d 405 (5th Cir. 2005). See also League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 533 (6th Cir. 2007). But see Kirk v. N.Y. State Dep’t of 

Educ., 562 F. Supp. 2d 405, 411 (W.D.N.Y. 2008) (applied strict scrutiny to cases involving 

nonimmigrant aliens, specifically rejecting the rationale offered in LeClerc and LULAC).

155. LeClerc, 419 F.3d at 422. See also LULAC, 500 F.3d at 533 (distinguishing between 

lawful permanent residents and lawful temporary residents in issuing drivers’ licenses).

156. LeClerc v. Webb, 444 F.3d 428, 429 (5th Cir. 2006) (Higginbotham, J., dissenting 

from denial of petition for rehearing en banc). 
part iii immigration law: a primer

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2. Public Function Exception

The general rule of strict scrutiny of state laws gives way to a more deferential standard when state government discriminates against aliens 

(or some subset of aliens) with respect to employment “intimately related to the process of democratic self-government.”157 In other words, 

the Supreme Court sees no relevant difference between legal aliens (at 

least permanent resident aliens) and citizens when it comes to the state 

distributing the ordinary benefits and burdens of society. But when the 

state is engaged in the process of forming the political community, the 

Court holds that the state can consider the citizenship distinction decisive.158 Because the Court refuses to strictly scrutinize all state laws adversely affecting resident aliens, it has developed a test for determining 

when to jettison strict scrutiny. If the classification is not tailored to 

encompass only those positions that “go to the heart of representative 

government,” the law receives strict scrutiny. If, however, the classification is sufficiently narrow to restrict access to only those jobs involving 

the development, implementation, and execution of “broad public 

policy,” then the Court will employ a more deferential standard of review akin to rational basis.159

The public function exception to strict scrutiny has been used by 

the Supreme Court to uphold state laws that place a citizenship requirement for employment eligibility as public school teachers,160 police officers,161 and probation officers.162 More recently, however, in 

Chang v. Glynn County School District,

163 a district court applied strict 

scrutiny in enjoining a school district from terminating the employment of two resident alien teachers. Distinguishing Ambach v. Nor157. Bernal v. Fainter, 467 U.S. 216, 220 (1984).

158. See Foley v. Connelie, 435 U.S. 291, 295–96 (1978).

159. See Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).

160. Ambach v. Norwick, 441 U.S. 68 (1979).

161. Foley, 435 U.S. 291.

162. Cabell, 454 U.S. 432.

163. 457 F. Supp. 2d 1378 (S.D. Ga. 2006).
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wick,

164 the court concluded that the Georgia law swept too broadly, 

“generally banning aliens from all public employment.”165

3. Federal Authorization of State Discrimination

Federal preemption provided a second rationale for striking down the 

discriminatory welfare provisions in Graham v. Richardson.

166 “State 

alien residency requirements that either deny welfare benefits to noncitizens or condition them on longtime residency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and 

abode. Since such laws encroach upon exclusive federal power, they 

are constitutionally impermissible.”167 But what if Congress, pursuant 

to its immigration power, authorized the states to enact discriminatory 

laws? Citing Shapiro v. Thompson,

168 the Graham Court, in dicta, reiterated that “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”169 Therefore, to 

avoid the constitutional problem, the Court concluded that Congress 

had not authorized the states to impose citizenship or durational residency requirements on the receipt of welfare benefits.170

In Soskin v. Reinertson,

171 the Tenth Circuit addressed the issue of 

whether Congress is constitutionally authorized to allow states to develop standards differentiating on the basis of alienage, where such 

authorization would be impermissible if distinctions were drawn between classes of citizens. Acting pursuant to congressional authorization given in the Welfare Reform Act,172 Colorado made a class of legal 

aliens ineligible for certain Medicaid benefits. Analyzing Graham, the 

Tenth Circuit said that “[t]he question is not whether Congress can 

authorize” the states to violate the Equal Protection Clause; the “ques164. 441 U.S. 68 (1979).

165. Chang, 457 F. Supp. 2d at 1381. The court found that the Georgia statute suffered defects similar to those present in the statute struck down in Sugarman v. Dougall, 

413 U.S. 634 (1973).

166. 403 U.S. 365 (1971).

167. Id. at 380.

168. 394 U.S. 618, 641 (1969).

169. Graham, 403 U.S. at 382.

170. Id. at 382–83.

171. 353 F.3d 1242 (10th Cir. 2004).

172. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 

Pub. L. No. 104-193, § 401, 110 Stat. 2105 (1996).
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30

tion is what constitutes such a violation when Congress has (clearly) 

expressed its will regarding a matter relating to aliens,” given Congress’s plenary power over such questions.173 Since Congress had 

authorized the discriminatory measures at issue, the court concluded 

that the deferential rational-basis review should be employed rather 

than strict scrutiny.174 One judge dissented, arguing that strict scrutiny 

was the proper standard for reviewing state alienage discrimination.175

B. Federal Power Over Immigration and Noncitizens

1. Government Benefits

In Mathews v. Diaz,

176 the Supreme Court upheld federal legislation 

that employed alienage discrimination to deny some permanent resident aliens federal welfare benefits, concluding that “it is unquestionably reasonable for Congress to make an alien’s eligibility depend on 

both the character and the duration of his residence.”177 The Court 

rejected the strict scrutiny test applied in Graham v. Richardson,

178 stating that “significantly different considerations” are at play when the 

federal government makes distinctions based on alienage because, unlike the states, “it is the business of the political branches of the Federal 

Government . . . to regulate the conditions of entry and residence of 

aliens.”179

In Hampton v. Mow Sun Wong,

180 the Court invalidated the Civil 

Service Commission rule that restricted employment in the federal civil 

service to citizens on the ground that the commission has “no responsibility for foreign affairs, for treaty negotiations, for establishing immigration quotas or conditions of entry, or for naturalization policies.”181

The Court assumed, however, that Congress and the President had the 

173. Soskin, 353 F.3d at 1254–55.

174. Id. at 1255 (citing Mathews v. Diaz, 426 U.S. 67, 78–83 (1976)).

175. Id. at 1275 (Henry, J., dissenting).

176. 426 U.S. 67 (1976).

177. Id. at 82–83. See also City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999) (using rational-basis review, court upheld Welfare Reform Act of 1996 despite fact that it 

significantly restricted permanent resident aliens’ access to welfare benefits).

178. 403 U.S. 365 (1971).

179. Mathews, 426 U.S. at 84.

180. 426 U.S. 88 (1976).

181. Id. at 114.
immigration law: a primer part iii

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power to prohibit aliens from receiving jobs in the federal civil service.182

2. Criminal Prosecution

The Supreme Court has held that aliens are entitled to the same criminal procedural rights as citizens before criminal punishment can be 

imposed on them.183 Lower courts have said, however, that Congress 

can distinguish between citizens and aliens, making some substantive 

criminal statutes only applicable against aliens. For example, several 

courts of appeals have held that the Hostage Taking Act184 is constitutional, despite the fact that its criminal penalties are only imposed on 

aliens.185

Significantly, the Supreme Court has consistently concluded that 

neither deportation nor exclusion constitute punishment.186 Therefore, 

an alien being deported or excluded is not entitled to a governmentfunded attorney or the other procedural protections offered criminal 

defendants by the Constitution.187 Similarly, the constitutional prohibition of ex post facto laws does not apply in the immigration context.188

182. Id. Following the Hampton decision, President Ford, through an executive order, reinstituted the ban on alien employment in the competitive civil service, and this 

order was upheld by lower courts. See Vergara v. Hampton, 581 F.2d 1281, 1286–87 (7th 

Cir. 1978); Santin Ramos v. U.S. Civil Serv. Comm’n, 430 F. Supp. 422, 424–25 (D.P.R. 

1977); Mow Sun Wong v. Hampton, 435 F. Supp. 37, 44–46 (N.D. Cal. 1977), aff’d sub nom. 

Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980).

183. See, e.g., Wong Wing v. United States, 163 U.S. 228, 238 (1896). The Court has 

held, however, that an alien sitting in a United States prison is not entitled to the Fourth 

Amendment’s exclusionary rule protection for a search conducted in Mexico. See United 

States v. Verdugo-Urquidez, 494 U.S. 259, 273–75 (1990). See also Gerald L. Neuman, 

Whose Constitution?, 100 Yale L.J. 909, 912 (1991); Michael Scaperlanda, The Domestic 

Fourth Amendment Rights of Aliens: To What Extent Do They Survive United States v. Verdugo-Urquidez?, 56 Mo. L. Rev. 213, 224 (1991).

184. Pub. L. No. 98-473, Title II, § 2002(a), 98 Stat. 2186 (1984), codified as amended at

18 U.S.C. § 1203 (2006).

185. See, e.g., United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001), cert. denied, 535 

U.S. 1028 (2002); United States v. Montenegro, 231 F.3d 389 (7th Cir. 2000); United States 

v. Santos-Riviera, 183 F.3d 367 (5th Cir. 1999); United States v. Lue, 134 F.3d 79 (2d Cir. 

1998); United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995).

186. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).

187. E.g., Murgia-Melendrez v. U.S. INS, 407 F.2d 207, 209 (9th Cir. 1969).

188. Harisiades v. Shaughnessy, 342 U.S. 580, 594–95 (1952).
part iii immigration law: a primer

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3. Substantive Immigration Law 

When the Supreme Court addresses substantive immigration issues—

issues of admission, exclusion, and expulsion—it approaches, but does 

not embrace, the complete deference attendant in the political question doctrine. Deference is due, the Court has said, because “any policy towards aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war 

power, and the maintenance of a republican form of government.”189

Therefore, “responsibility for regulating the relationship between the 

United States and our alien visitors” is “frequently of a character more 

appropriate to either the Legislature or the Executive than to the Judiciary.”190 This “plenary power” is at its zenith with respect to aliens 

outside the United States as the “Court has repeatedly emphasized that 

‘over no conceivable subject is the legislative power of Congress more 

complete than it is over’ the admission of aliens.”191

Despite criticism from the bench192 and from many scholarly 

commentators,193 the Court has steadfastly refused to assimilate its federal alienage jurisprudence into mainstream constitutional law.194 Instead of applying heightened scrutiny, as would be required by domestic constitutional norms, the Court has exercised deference in sanction189. Id. at 588–89.

190. Mathews v. Diaz, 426 U.S. 67, 81 (1976).

191. Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co. v. 

Stranahan, 214 U.S. 320, 339 (1909)).

192. For a look at the history of dissent in federal alienage cases, see generally Michael Scaperlanda, Justice Thurgood Marshall and the Legacy of Dissent in Federal Alienage 

Cases, 47 Okla. L. Rev. 55 (1994).

193. See, e.g., Janel Thamkul, The Plenary Power-Shaped Hole in the Core Constitutional 

Law Curriculum: Exclusion, Unequal Protection, and American National Identity, 96 Cal. L. 

Rev. 553 (2008); Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Cal. L. Rev. 

373 (2004); Peter J. Spiro, Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339 

(2002); Gabriel Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998); Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 Iowa L. Rev. 707 (1996); Stephen 

Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 

Hastings Const. L.Q. 925 (1995); Michael Scaperlanda, Polishing the Tarnished Golden Door, 

1993 Wis. L. Rev. 965 (1993); Hiroshi Motomura, The Curious Evolution of Immigration 

Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 

(1992). 

194. Scaperlanda, Partial Membership, supra note 193, at 723–24.
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33

ing the discriminatory exclusion and/or deportation of aliens on the 

basis of race,195 speech,196 and gender.197

4. Procedural Due Process

The decision to remove (by exclusion or deportation) an alien from 

the United States has long been considered a civil matter, not a criminal one; therefore, the alien in removal proceedings is entitled to none 

of the panoply of constitutional criminal procedure rights.198 Any alien, 

whether in the United States legally or not, is entitled to the protections 

afforded by the Due Process Clause of the Fifth Amendment with respect to any removal decision.199 A permanent resident alien who is 

returning to the United States after a non-lengthy trip abroad is similarly entitled to due process protection.200

Aliens who have not entered the country and do not fall within the 

exception for returning permanent residents receive no constitutional 

due process protection with respect to the government’s decision to 

deny entry, even if the denial leads to indefinite confinement.201 Aliens 

at ports of entry (including interior airports) and aliens who have been 

195. E.g., The Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 

581, 606 (1889) (“If . . . the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will 

not assimilate with us, to be dangerous to its peace and security, their exclusion is not to 

be stayed . . . .”); Fong Yue Ting v. United States, 149 U.S. 698, 730–32 (1893) (upholding 

expulsion of Chinese citizens).

196. E.g., Kleindienst v. Mandel, 408 U.S. 753, 765–70 (1972) (upholding exclusion 

based on political opinion); Galvan v. Press, 347 U.S. 522, 528–32 (1954) (upholding deportation because of prior membership in Communist Party). Mandel does allow “limited 

judicial review of First Amendment claims” to challenge either “a consular officer’s visa 

denial” or “the Attorney General’s denial of a waiver of admissibility.” Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 124–25 (2d Cir. 2009).

197. E.g., Tuan Anh Nguyen v. INS, 533 U.S. 53, 68–73 (2001) (upholding citizenship 

statute that treats father–child relationship less favorably than mother–child relationship); Fiallo v. Bell, 430 U.S. 787, 797–800 (1977) (upholding law that treated relationship 

between natural mother and her offspring more favorably than relationship between 

natural father and his offspring for immigration purposes).

198. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).

199. See, e.g., Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86 (1903).

200. Landon v. Plasencia, 459 U.S. 21 (1982).

201. See id. at 32 (“Court has long held that an alien seeking initial admission to the 

United States requests a privilege and has no Constitutional rights regarding his application.”).
part iii immigration law: a primer

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paroled into the country have not entered the country; therefore, unless they are returning permanent residents, they are not entitled to due 

process. The Court, in Shaughnessy v. United States ex rel. Mezei,

202 rejected a noncitizen’s claim to due process even though he faced indefinite detention on Ellis Island pending removal to a third country. 

Mezei, a permanent resident alien who had resided in the United States 

for a quarter of a century, had made a twenty-one-month trip abroad. 

Upon his attempted return, the government permanently excluded him 

and refused to reveal its evidence of excludability, even in camera, to a 

U.S. district court judge. The Supreme Court rejected Mezei’s due

process claim, holding that the constitutional guarantee of due process 

did not extend to an alien at the border (a legal fiction because of his 

actual physical presence on U.S. soil). “Whatever the procedure 

authorized by Congress is, it is due process as far as an alien denied 

entry is concerned.”203

For those aliens entitled to due process in immigration proceedings—aliens who have entered the country (whether legally or not) or 

permanent residents who are returning after a short period abroad—

the question is what process is due. In determining the process due, 

the Court, in Landon v. Plasencia,

204 used the balancing test it had 

adopted in Mathews v. Eldridge: “In evaluating the procedures in any 

case, the courts must consider the interest at stake for the individual, 

the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the cur202. 345 U.S. 206 (1953). In Landon v. Plasencia, 459 U.S. 21, 33–34 (1982), the Court 

distinguished Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), because the 

alien in Mezei had been absent from the United States for “some twenty months,” not 

“only a few days.”

203. Mezei, 345 U.S at 212 (quoting United States ex rel. Knauff v. Shaughnessy, 338 

U.S. 537, 544 (1950)). See also Gerald L. Neuman, Discretionary Deportation, 20 Geo. Immigr. 

L.J. 611, 635 (2006) (“Since 1996, tens of thousands of aliens are denied entry every year in 

reliance on Knauff, without the opportunity to consult an attorney or present witnesses, 

because immigration inspectors have concluded that their papers are defective or that 

they are lying. On the other hand, deportation from within the United States requires 

procedural due process, evaluated by the usual standards.”).

204. 459 U.S. 21 (1982).
immigration law: a primer part iii

35

rent procedures rather than additional or different procedures.”205 Because the proceedings prescribed by statute and rule clearly exceed the 

constitutional minima in most cases, claims of denial of due process 

often rest on case-specific facts, with the alien prevailing in some 

cases206 and the government in others, especially when no prejudice is 

shown.207

a. Due Process and Detention

The detention of noncitizens raises a host of difficult constitutional 

issues.208 For what reasons and for how long can an alien be detained 

pending a removal hearing and during the removal process? For what 

reasons and for how long can an alien be detained pending removal 

from the country after an order of removal has been entered? Can 

noncitizens be detained indefinitely? Under what conditions? 

Demore v. Kim209 addressed a question of mandatory detention. In 

that case, the Supreme Court concluded that Congress acted within 

constitutional bounds when it required mandatory detention of certain 

criminal aliens “during removal proceedings.”210 In accord with this 

205. Id. at 34 (paraphrasing Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976)). See also

Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267 (1975) (discussing elements of a fair hearing).

206. See, e.g., Floroiu v. Gonzales, 481 F.3d 970 (7th Cir. 2007) (manifestation of clear 

bias by immigration judge against aliens constituted denial of due process); Cham v. Att’y 

Gen. of U.S., 445 F.3d 683 (3d Cir. 2006) (verbal abuse, brow beating of witness, belligerence in questioning, refusal to consider significant evidence, and “wholesale nitpicking” 

by immigration judge amounted to violation of due process); Ray v. Gonzales, 439 F.3d 

582 (9th Cir. 2006) (ineffective assistance of counsel in deportation proceedings can 

amount to due process violation); Amadou v. INS, 226 F.3d 724 (6th Cir. 2000) (alien deprived of due process because of interpreter incompetence).

207. See, e.g., United States v. DeLeon, 444 F.3d 41 (1st Cir. 2006) (year-long delay in 

preparing transcript not due process violation absent showing of prejudice); Khan v. 

Att’y Gen. of U.S., 448 F.3d 226 (3d Cir. 2006) (no due process violation in denying continuance absent showing of prejudice); Gishta v. Gonzales, 404 F.3d 972 (6th Cir. 2005) 

(alleged problems with interpreter not a due process violation where immigration judge 

had no notice of problems).

208. Detention of aliens for national security reasons not directly involving immigration questions is beyond the scope of this monograph. For further reading, see Boumediene v. Bush, 128 S. Ct. 2229 (2008).

209. 538 U.S. 510 (2003).

210. Id. at 531. Detention during removal proceedings is a constitutionally permissible part of that process. See, e.g., Wong Wing v. United States, 163 U.S. 228, 235 (1896)
part iii immigration law: a primer

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ruling, where Congress has determined that a category of criminal aliens ought to be detained during removal proceedings and the affected 

alien falls within that category, the Constitution does not always require 

an individualized hearing to determine potential flight risk or danger to 

the community posed by the alien. 

The Supreme Court addressed indefinite detention in Zadvydas v. 

Davis.

211 Using the clear statement rule or the doctrine of constitutional 

avoidance,212 the Court construed an immigration statute authorizing 

extended detention pending removal as not permitting indefinite detention. Reaffirming that an alien who has entered the United States is 

entitled to due process, the Court opined that a statute that would allow indefinite and possibly permanent detention without a showing 

that the alien would be a danger to the community and without adequate judicial review “would raise a serious constitutional problem.”213

Zadvydas and Demore leave several questions unanswered. Neither 

case addressed the detention of inadmissible aliens. It is unclear 

whether Mezei, in which the Court concluded that a permanent resident, returning after an extended absence, could be held indefinitely 

and potentially permanently without a hearing where the only other 

option was to release him into the United States,214 survives these cases. 

On the one hand, the Zadvydas Court said: 

(“We think it clear that detention, or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens would be 

valid.”).

211. 533 U.S. 678 (2001).

212. The Court stated: “‘[I]t is a cardinal principle’ of statutory interpretation, however, that when an Act of Congress raises ‘a serious doubt’ as to its constitutionality, ‘this 

Court will first ascertain whether a construction of the statute is fairly possible by which 

the question may be avoided.’ Crowell v. Benson, 285 U.S. 22, 62 (1932).” Zadvydas, 533 U.S. 

at 689. The Court went on to state: “Despite this constitutional problem, if ‘Congress has 

made its intent’ in the statute ‘clear, “we must give effect to that intent.”’ Miller v. French, 

530 U.S. 327, 336 (2000).” Zadvydas, 533 U.S. at 696 (internal citation omitted).

213. Id. at 690. See Tran v. Mukasey, 515 F.3d 478, 484 (5th Cir. 2008) (habeas petition 

granted; statute, as interpreted by Zadvydas and Clark, does not permit indefinite detention of any class of removable aliens, even those who are mentally ill and may pose a 

threat to the community).

214. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (discussed 

supra notes 202–03 and accompanying text).
immigration law: a primer part iii

37

A statute permitting indefinite detention of an alien would raise 

a serious constitutional problem. The Fifth Amendment’s Due

Process Clause forbids the Government to “depriv[e]” any 

“person . . . of . . . liberty . . . without due process of law.” Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the 

liberty that Clause protects. And this Court has said that government detention violates that Clause unless the detention is 

ordered in a criminal proceeding with adequate procedural protections, or, in certain special and “narrow” nonpunitive “circumstances,” where a special justification, such as harmthreatening mental illness, outweighs the “individual’s constitutionally protected interest in avoiding physical restraint.”215

In Clark v. Martinez,

216 the Court concluded that the detention 

statute interpreted in Zadvydas as not allowing indefinite detention of 

deportable aliens applies in the same way to inadmissible aliens despite 

the dissimilarity in constitutional concerns. The question remains open 

as to whether aliens who have not been admitted have a constitutional 

due process right against indefinite detention217 and, if so, whether they 

have a constitutional right to release from custody or a right to an individualized hearing to determine the question of release.

On the other hand, the Zadvydas Court distinguished Mezei: 

Although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As 

the Court emphasized, the alien’s extended departure from the 

United States required him to seek entry into this country once 

again. His presence on Ellis Island did not count as entry into 

the United States. Hence, he was “treated,” for constitutional 

purposes, “as if stopped at the border.” And that made all the difference.218

215. Zadvydas, 533 U.S. at 690 (internal citations omitted).

216. 543 U.S. 371 (2005).

217. See Kiyemba v. Obama (Kiyemba I), 555 F.3d 1022 (D.C. Cir. 2009), cert. granted,

78 U.S.L.W. 3237 (U.S. Oct. 20, 2009) (No. 08-1234) (no due process rights). But see Qassim 

v. Bush, 407 F. Supp. 2d 198 (D.D.C. 2005) (citing Zadvydas and Clark as providing analogous reasoning for releasing two Guantanamo Bay prisoners who were held for nine 

months after a determination that they were no longer enemy combatants).

218. Zadvydas, 533 U.S. at 693 (internal citations omitted).
part iii immigration law: a primer

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It will be left to future judicial decisions, therefore, to tease out the effects of Zadvydas, if any, on the due process rights of detained aliens 

who have not yet entered the country. 

The questions presented in Zadvydas and Demore intersect in cases 

where the removal proceeding drags on for months or even years. In 

Tijani v. Willis,

219 the Ninth Circuit construed Demore narrowly, concluding that mandatory detention during a removal process that had 

lasted nearly three years was of doubtful constitutionality.220 Demore

also “left open the question of whether mandatory detention . . . is 

consistent with due process when a detainee makes a colorable claim 

that he is not in fact deportable.”221 Another question left open by Demore is whether mandatory detention can constitutionally be extended 

to aliens who are allegedly removable on noncriminal and nonterrorist 

grounds, such as visa overstays.

219. 430 F.3d 1241 (9th Cir. 2005). But see Soberanes v. Comfort, 388 F.3d 1305, 1311 

(10th Cir. 2004) (prolonged detention upheld while leaving open possibility of remedial 

action if appeals not concluded in timely fashion).

220. Tijani, 430 F.3d at 1242.

221. Gonzalez v. O’Connell, 355 F.3d 1010, 1019–20 (7th Cir. 2004).
39

IV. Admission Categories

The Immigration and Nationality Act classifies noncitizens as either 

immigrants or nonimmigrants. Most nonimmigrant categories require 

the alien to have a foreign residence that she has no intention of abandoning and a “nonimmigrant” intent: in other words, an intent to stay 

in the United States temporarily. A noncitizen seeking to enter the 

United States must demonstrate that she fits into one of the immigrant 

or nonimmigrant categories. Even if the noncitizen fits within one of 

the categories, and is thereby affirmatively eligible to enter the United 

States, the noncitizen will still be excluded if she falls within one of the 

grounds for inadmissibility, which is the subject of Part V.

A. Nonimmigrant Categories

The nonimmigrant categories are a veritable alphabet soup. Tourists 

and those in the United States on business obtain B visas. Treaty traders and treaty investors seek E visas. Students receive F visas unless they 

receive a J visa or an M visa. The Tenth Circuit held that it had jurisdiction to review an immigration judge’s holding that a student had 

terminated or abandoned her course of study since the holding involved statutory interpretation and a question of law.222 The court concluded that affirmative action is required on the part of the alien to 

terminate or abandon, and that the school closing does not constitute 

termination or abandonment of course study.223 H, L, O, and P are all 

nonimmigrant work visas. Section 101(a)(15)(a)–(v) of the INA lists the 

nonimmigrant visas with each visa’s common name corresponding to 

its subsection number.

224 Many nonimmigrant categories have derivative visas allowing the spouse and children to accompany the primary 

visa holder. In 2007, the United States admitted 37 million nonimmigrants; 74.4% were B-2 visitors for pleasure and another 15% were B-1 

visitors for business.225 After providing an overview of the nonimmi222. Lee v. Mukasey, 527 F.3d 1103, 1104 n.4 (10th Cir. 2008).

223. Id. at 1107.

224. See 8 U.S.C. § 1101(a)(15) (2006).

225. See Office of Immigration Statistics, 2007 Yearbook of Immigration Statistics, available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2007/ois_2007_yearbook.pdf.
part iv immigration law: a primer

40

grant categories, this section will sample an issue that arises in court 

with respect to nonimmigrants.

A and G visas are for foreign government representatives. C and D 

visas are for aliens in transit and alien crewmembers, respectively. F, J, 

and M visas are for students. F is the general student visa; M is more 

restrictive and is for vocational students; and J visas are for those—

students or others—who are participants in a United States Information 

Agency designated program. Fiancés and those recently married to a 

U.S. citizen are eligible for K visas. V visas are available for certain 

spouses and children of permanent resident aliens who have endured 

long waits because of numerical backlogs for permanent visas. S, T, 

and U visas are for a subset of those who have “critical reliable information” needed by our government on criminal or terrorist organizations, those who have been victims of human trafficking, and those 

who have “suffered substantial physical or mental abuse” as crime victims, respectively. E, H, I, L, O, P, Q, and R visas are all work-related 

visas. Nonimmigrant intracompany transfers of executives, managers, 

and those possessing specialized knowledge receive L visas; foreign

media receive I visas; and nonimmigrant religious workers receive R 

visas. O’s and P’s are for those persons who possess “extraordinary 

ability,” such as athletes, artists, and entertainers. H-2 visas are for general and agricultural workers who are coming to the United States temporarily to perform a temporary job (notice the double temporary requirement). More highly skilled jobs—work and workers meeting the 

definition of a “specialty occupation”226 and fashion models—are eligible for H1-b visas. United States policy favors protecting the domestic 

workforce; therefore a statutory requirement mandates that the labor 

market be tested before the granting of H visas to ensure that no domestic workers are available to do the job and that the prospective employer will not, by hiring the alien, depress wages and working conditions in the United States. 

An alien can be denied a visa, denied entry, or be removed from 

the United States for engaging in activities in the United States that fall 

outside the scope permissible for his nonimmigrant category. For instance, in Mwongera v. Immigration and Naturalization Service,

227 the 

226. 8 U.S.C. § 1184(i)(1) (2006).

227. 187 F.3d 323 (3d Cir. 1999).
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41

Third Circuit upheld the BIA’s determination that the alien had been 

properly denied entry into the United States because he didn’t plan on 

staying in the United States on a temporary basis, and the scope of his 

activities exceeded those of someone traveling as a B-1 visitor for business.228

As in Mwongera, a tension can persist between “business,” for 

which the relatively accessible B-1 visa is available, and “labor” or 

“employment,” for which another, harder-to-obtain visa would be required. Can a foreign company bring into the United States its own 

employees to install or repair a complicated machine or must it hire 

domestic employees for such purposes? Can an alien who is in the 

United States to take orders for suits to be sewn in Hong Kong take the 

measurements of his buyers, or is this skilled labor for which he must 

either hire domestically or satisfy the labor market tests? Can a Canadian citizen drive a bus between Montreal and New York City on a B-1 

visa? What if passengers are picked up and dropped off in U.S. cities 

along the way?

In International Longshoremen’s & Warehousemen’s Union v. 

Meese,229 the Ninth Circuit addressed the issue of foreign labor, but in a 

slightly different context. That case involved a Canadian company that 

owned two logging vessels. In consultation with the INS, the company 

designated onboard crane operators as “alien crewmen”—D visa holders. The union objected, arguing that the crane operators were performing domestic labor and, therefore, would need to obtain work visas, which would be difficult if not impossible given the domestic 

workers available and willing to do the work. Interpreting BIA precedent, the court concluded that the crane operators were engaged in 

domestic labor and that the “alien crewmen” designation was improper. In concluding that they were not “alien crewmen,” the court 

relied on three nonexclusive factors: “First, cargo handling is not an 

activity associated with traditional crewmen, but is ordinarily associated with longshore laborers. Second, these operators do not aid in the 

navigation like fulltime cooks because their primary and substantial 

duties occur not while the ship is underway, but rather once they have 

228. Id. at 328–29. The court also affirmed the BIA’s determination that the alien 

had engaged in misrepresentation.

229. 891 F.2d 1374 (9th Cir. 1989).
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42

entered United States territorial waters to load or unload the cargo. . . .

Third, these operators do not have a permanent connection with the 

ship. Although they travel with the ships on trips to the United States 

ostensibly to comply with the immigration laws, it is undisputed that 

they frequently fly to the ship on the trips within Canada when it is 

time to load or unload the cargo.”230

B. Immigrant Categories

The INA divides immigrants into three major categories: familysponsored immigrants, employment-based immigrants, and diversity 

immigrants. The Act imposes numerical limits on all but one important subcategory of family-based immigrants. Coupled with worldwide 

limits, per-country limits can lead to long waiting periods in some 

categories.231 In the five-year period ending in 2005, the United States 

added on average just under 1 million new permanent resident aliens a 

year.232 Of the 2005 total of 1.1 million233 new permanent resident aliens, 650,000 immigrated based on family relationship, 250,000 based on 

employment, 140,000 as refugees and asylees, and 50,000 won the diversity lottery.234 An alien might simultaneously be waiting for a USCIS 

decision on a pending immigrant visa petition while fighting deportation in a removal proceeding.

1. Family Reunification

U.S. citizens can, without numerical limits, file an immigration petition

on behalf of their “immediate relatives”—spouses, children (unmarried, under twenty-one years of age), and parents.235 Within specified 

230. Id. at 1382–83.

231. For example, there was a seven-and-a-half-year backlog for spouses of permanent resident aliens from Mexico as of March 2009. See U.S. Dep’t of State, Visa Bulletin 

for March 2009, available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4428.html. 

232. See Office of Immigration Statistics, 2005 Yearbook of Immigration Statistics, available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/OIS_2005_Yearbook.pdf.

233. This is the sixth highest number of new permanent resident aliens on record, 

exceeded only in the years 1907, 1913, 1914, 1990, and 1991. See id.

234. Id. Refugee law and asylum are addressed infra Part X. Diversity lottery is discussed infra Part IV.B.3.

235. 8 U.S.C. § 1151(b)(2)(A)(i) (2006). A citizen must be at least twenty-one to file 

an immigration petition on behalf of his or her parents.
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numerical limits, U.S. citizens can file an immigration petition on behalf of their unmarried sons and daughters,236 their married sons and 

daughters,237 and their brothers and sisters.238 Subject to numerical limits, permanent resident aliens can file an immigration petition on behalf of their spouses, children, and unmarried sons and daughters.239

a. Marriage

Citizens and permanent residents can file an immigrant petition on 

behalf of their spouse, the beneficiary of the petition. To minimize the 

potential for marriage fraud, Congress adopted the Immigration Marriage Fraud Amendment Act of 1986. Under this Act, if the qualifying 

marriage is less than two years old at the time of immigration, the immigrant beneficiary becomes a conditional permanent resident alien 

for a period of two years.240 At the end of the two-year period, the 

spouses must jointly (unless the petitioning spouse is deceased) file a 

petition to remove the condition. The statute provides exceptions, allowing the immigration officials discretionary authority to lift the condition without joint filing “if the alien demonstrates that (A) extreme 

hardship would result if such alien is removed, (B) the qualifying marriage was entered in good faith by the alien spouse, but the qualifying 

marriage has been terminated (other than through the death of the 

spouse) and the alien was not at fault in failing [to jointly petition], or 

(C) the qualifying marriage was entered into in good faith by the alien 

spouse and during the marriage the alien spouse or child was battered 

by or was subject to extreme cruelty perpetrated by his or her spouse 

or citizen or permanent resident parent and the alien was not at fault in 

failing” to jointly file the petition to remove the condition.241

236. Id. § 1153(a)(1). “Sons” and “daughters” are twenty-one years of age or older.

237. Id. § 1153(a)(3).

238. Id. § 1153(a)(4).

239. Id. § 1153(a)(2)(A) & (B).

240. Id. § 1186a. For an extensive look at the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 (1986) (codified in part at 8 U.S.C. 

§ 1186a), see Beth Stickney, Conditional and Permanent Residency Through Marriage: Part I, 

99-10 Immigr. Briefings (Oct. 1999), and Conditional and Permanent Residency Through 

Marriage: Part II, 99-11 Immigr. Briefings (Nov. 1999).

241. 8 U.S.C. § 1186a(c)(4) (2006).
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In Cho v. Gonzales,

242 the First Circuit reviewed a BIA determination that the alien had not entered the marriage in “good faith,” and, 

therefore, did not statutorily qualify for a waiver under (B). The court 

disagreed and concluded that the alien had shown the marriage was 

entered into in “good faith.”243 According to the court, the BIA had 

looked at two factors—the timing of the marriage and the timing of the 

separation—in isolation when it should have placed them into the 

overall context, which included a two-year trans-Pacific courtship with 

extensive interaction in person and telephonically, living together after 

marriage until separation, and joint health insurance, tax returns, 

credit cards, bank accounts, and auto loans.244

b. Parents, Children, Sons, and Daughters

The Act defines “child” as “an unmarried person under twenty-one 

years of age” who has a specified relationship with her parent.245

“Sons” and “daughters” are those who possess the requisite relationship but are twenty-one years old or older. Since unmarried offspring 

are entitled to greater immigration benefits, there is a possibility of 

fraudulent divorce for the purpose of obtaining immigration benefits.246 The following categories of persons qualify as children under the 

statute: legitimate children; stepchildren, provided the marriage creating the relationship occurred before the child turns eighteen; legitimated children, provided the legitimating parent has custody and the 

legitimization occurs before the child turns eighteen; illegitimate children with respect to the natural mother; illegitimate children with respect to the natural father if there is a “bona fide parent–child relationship”;

247 and certain adopted children.248

242. 404 F.3d 96 (1st Cir. 2005).

243. Id. at 104.

244. Id. See also Damon v. Ashcroft, 360 F.3d 1084 (9th Cir. 2004) (immigration 

judge’s finding that marriage was not entered in good faith lacked substantial evidence). 

Cf. Nyonzele v. INS, 83 F.3d 975 (8th Cir. 1996) (BIA properly considered all factors and, 

therefore, did not abuse its discretion in finding lack of “good faith”).

245. 8 U.S.C. § 1101(b)(1) (2006).

246. See generally Onyeme v. U.S. INS, 146 F.3d 227 (4th Cir. 1998).

247. The less favorable treatment of the father–illegitimate child relationship is not 

unconstitutional gender discrimination. See Nguyen v. INS, 533 U.S. 53 (2001); Fiallo v. 

Bell, 430 U.S. 787 (1977).

248. 8 U.S.C. § 1101(b)(1)(A)–(F) (2006).
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45

Because of the immigration benefits conferred by the parent–

child–sibling relationship, this has been a fruitful area for litigation. 

Several questions arise: Can a person file an immigration petition on 

behalf of both her biological mother, who was not married to her father at the time of birth, and her stepmother, who was married to her 

father at that time?249 After an adoption, does the biological sibling relationship survive for immigration purposes?250 Is an adoption that occurs pursuant to a society’s cultural norms a valid adoption for immigration purposes if it is outside the “law”?251 Are “A” and “B” siblings 

for immigration purposes if “A” became the stepchild of “B’s” mother 

but turned twenty-one before “B” was born so that they were not “children” of a common parent at the same time but each were “children” 

of the common parent at one time?252

At times questions of parent–child–sibling relationships can involve intricate questions of foreign law and foreign custom. For example, in the Kingdom of Tonga it is not uncommon “for relatives to 

raise and maintain children, including legitimate children as part of the 

family and to treat them in all respects as if they were legally 

adopted.”253 What is the status of these “customary adoptions” for immigration purposes under the statute? “The BIA has expressly held that 

it is not necessary for an adoption to be recognized by a juridical act 

before it can be recognized as valid for immigration purposes.”254

Therefore, the BIA framed what it saw as the relevant question this way: 

“We must therefore determine whether customary adoption in Tonga 

249. Cf. Matter of Fong, 17 I. & N. Dec. 212 (BIA 1980) (allowing U.S. citizen to file 

visa petition for stepmother).

250. Although the statute is silent on this question, the BIA concluded the sibling 

relationship depends on the parent–child relationship, and since the adoption terminates 

the parent–child relationship for immigration purposes, it also terminates the sibling relationship. Matter of Li, 20 I. & N. Dec. 700 (BIA 1993). See also Young v. Reno, 114 F.3d 879 

(9th Cir. 1997) (applying Chevron deference in following Li); Kosak v. Devine, 439 F. Supp. 

2d 410 (E.D. Pa. 2006) (same).

251. Yes, if it “creates a legal status which is recognized by the government in that 

country as carrying with it substantial legal rights and obligations.” Matter of Fakalata, 18 

I. & N. Dec. 213 (BIA 1982).

252. See Matter of Mourillon, 18 I. & N. Dec. 122 (BIA 1981) (yes).

253. Kaho v. Ilchert, 765 F.2d 877, 883 (9th Cir. 1985) (quoting the Crown Solicitor of 

Tonga).

254. Id. at 885.
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creates a legal status which is recognized by the government in that 

country as carrying with it substantial legal rights and obligations.”255

Based on letters from the Tongan Crown Solicitor and a treatise of 

Tongan adoptions, the BIA concluded that customary adoptions were 

not legally cognizable in Tonga because (1) only adoption of illegitimate children receive legal sanction, (2) customarily adopted children 

lack inheritance rights, and (3) the adoption does not sever the parental relationship with the biological parents.256 The Ninth Circuit disagreed with the BIA’s conclusions. In responding to each of the BIA’s 

points, the court saw a logical reason why Tonga had created law with 

respect to adoption of illegitimate children while continuing to rely on 

custom for other adoptions.257 It also said that neither illegitimates under juridical adoption nor legitimates under customary adoption receive inheritance rights, therefore the issue of inheritance is irrelevant 

to the question of whether customary adoptions are legally cognizable.258 Finally, the court found the BIA’s analysis based on the “fluidity” and nonexclusivity of Tongan customary adoptions flawed. It said: 

“For an adoption to be valid under 1101(b)(1)(E), an adoption need 

not conform to the BIA’s or Anglo-American notions of adoption; the 

adoption need only be recognized under the law of the country where 

the adoption occurred.”259 The Ninth Circuit’s reading of the Crown 

Solicitor’s correspondence—particularly his second letter—and the 

treatise differed from the BIA’s, and the Ninth Circuit concluded that

“Tongan courts will enforce the rights and duties stemming” from customary adoptions.260

2. Employment

The statute divides employment-based immigration into five categories.261 Priority workers, otherwise known as EB-1s, are further divided 

into three subcategories: (1) aliens of “extraordinary ability in the sciences, arts, education, business, or athletics”; (2) outstanding profes255. Matter of Fakalata, 18 I. & N. Dec. 213 (BIA 1982).

256. Id. at 216–17.

257. Kaho, 765 F.2d at 884–85.

258. Id. at 885.

259. Id. 

260. Id.

261. 8 U.S.C. § 1153(b)(1)–(5) (2006).
immigration law: a primer part iv

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sors and researchers; and (3) certain multinational executives and 

managers.262 Persons “who are members of the professions holding 

advanced degrees or their equivalent” and persons possessing “exceptional ability in the sciences, arts, or business” fit the EB-2 category.263

The statute subdivides EB-3s into three subcategories: skilled workers, 

professionals, unskilled labor.264 Special Immigrants—EB-4s—consist 

of a myriad of disparate categories, including religious workers, certain 

former U.S. government employees, and certain abused juveniles.265

The employment creation (or EB-5) category allows those with money 

to spend to immigrate on the condition that they invest a certain 

amount of capital and create a certain number of jobs in the United 

States.266

a. Extraordinary Ability

The regulations in the Act guide the U.S. Citizenship and Immigration 

Services (USCIS) in determining whether an alien meets the criteria for 

EB-1 as a person of extraordinary ability.267 In Lee v. Ziglar,

268 the court 

upheld the INS’s determination that the plaintiff did not qualify as an 

EB-1 “extraordinary ability” alien. Lee served as a coach for the Chicago White Sox and applied for EB-1 status based on his ability as a 

baseball player, “arguably one of the most famous baseball players in 

Korean history.”269 In concluding that the INS had not abused it discretion, the court said: “Lee’s extraordinary ability as a baseball player 

does not imply that he also has extraordinary ability in all positions or 

professions in the baseball industry such as a manager, umpire or 

coach.”270

262. Id. § 1153(b)(1)(A)–(C).

263. Id. § 1153(b)(2)(A).

264. Id. § 1153(b)(3)(A)(i)–(iii).

265. Id. §§ 1153(b)(4) & 1101(a)(27)(A)–(M).

266. Id. § 1153(b)(5).

267. 8 C.F.R. § 204.5(h) (2008). See also Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 

1994) (INS abused its discretion in several ways in refusing to classify Albanian physician 

as “extraordinary” based on the documentation presented).

268. 237 F. Supp. 2d 914 (N.D. Ill. 2002).

269. Id. at 915.

270. Id. at 918.
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In contrast, the court in Grimson v. INS271 held that the INS had 

abused its discretion in failing to designate a Canadian hockey player 

as a person of “extraordinary ability.” As the team’s “enforcer,” the 

petitioner fought “when necessary, but also protect[ed] the team stars 

from being roughed up by the opposing team,” and served as a deterrent against additional fights.272 In that case, the Administrative Appeals 

Unit (AAU) had affirmed the INS’s denial of visa petition on the 

ground that the record failed to show that the petitioner “has achieved 

sustained national or international acclaim required for the classification,” despite the fact that he had played in the National Hockey 

League for a number of years and that he was “the third rated and third 

highest paid enforcer in the NHL.”273 In reversing the AAU, the court 

said that “[i]t is apparent . . . that at the heart of defendant’s refusal to 

grant plaintiff a visa (as it had to other comparable NHL players) is its 

distaste for the role he plays on a hockey team. As stated in the Director’s decision, . . . ‘The necessity of such a role [enforcer] appears to be 

debatable. The service does argue that the sport itself has never condoned the kind of activity that petitioner is known for, as evidenced by 

the number of penalty minutes he is charged.’”274 The court concluded 

that the AAU could not simply ignore the fact “that the role of the enforcer” is “both a necessary and accepted element of the game.”275

b. Labor Certification

The desire to protect the domestic workforce acts as a strong counterweight against immigration. To protect domestic labor, EB-2s (members of the professions holding advanced degrees and exceptional ability aliens) and EB-3s (professionals, skilled and unskilled workers) are 

inadmissible unless the employer receives labor certification from the 

Department of Labor (DOL),

276 although both a job offer and labor 

certification can be waived for an EB-2 if the USCIS determines that 

granting the waiver is in the national interest.277 To obtain labor certifi271. 934 F. Supp. 965 (N.D. Ill. 1996).

272. Id. at 969.

273. Id. at 967.

274. Id. at 968.

275. Id. at 969.

276. 8 U.S.C. §§ 1182(a)(5) & 1153(b)(3)(C) (2006).

277. Seeid. § 1153(b)(2)(B).
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cation, the employer must show that “there are not sufficient workers 

who are able, willing, qualified [equally qualified for teachers] and 

available” for hire and that “the employment of such alien will not adversely affect the wages and working conditions of workers in the 

United States and similarly employed.”278 To streamline the labor certification process and to eliminate long backlogs, the DOL replaced its 

old system of “file and approve” with an attestation and audit system in 

March 2005,279 although much of the substantive law pertaining to labor certification remains intact.

Most administrative litigation and rulings have centered on the following issues:

(1) whether a bona fide job opportunity open to U.S. workers 

exists (e.g., considering the totality of the circumstances such as 

the alien’s relationship to the employer);280

(2) whether the job offer lists unduly restrictive requirements 

(i.e., requirements above those normally required for a position) and, if so, whether the employer has justified such a requirement on business necessity grounds;

(3) whether the job offer lists the actual minimum requirements 

(e.g., if the alien was initially hired with less experience or education, the employer must establish that the prior employment 

was in a different position or [the employer] currently lacks the 

ability to train new workers);

(4) whether the wage offered meets prevailing wage standards 

(involving an assessment of DOL wage data or employer wage 

data);

(5) whether any U.S. workers responding to the employer’s recruitment campaign were rejected for lawful, job-related reasons;

(6) whether the recruitment campaign was conducted in good 

faith (e.g., apparently qualified U.S. applicants were contacted in 

a reasonable and timely manner);

278. Id. § 1182(a)(5)(A)(i)(I)–(II).

279. See 20 C.F.R. § 656.10 (2008).

280. See, e.g., Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989) (denial of labor certification was not arbitrary or capricious; no bona fide job opportunity for a domestic 

worker existed where owner of company had company seek labor certification for himself).
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(7) whether the employer’s documentation conforms to DOL 

standards governing reliability.281

An employer seeking labor certification must avoid “unduly restrictive” job requirements and duties. If the job requirements or duties appear “unduly restrictive,” the employer must demonstrate “business necessity.”282 “Business necessity” need not be shown, however, if 

the job duties fall within one of the job categories described in the 

O*Net Job Zones online database and the requirements are “those 

normally required for the occupation and [do] not exceed the Specific 

Vocational Preparation level assigned to the occupation” in O*Net.283

“To establish a business necessity, an employer must demonstrate the 

job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to 

perform the job in a reasonable manner.”284

Requiring education or experience above that normally required 

for the job, combining two traditionally separate jobs (e.g., film projectionist and accountant) into one, requiring proficiency in a foreign 

language, and requiring that the employee live on-site usually require 

the showing of business necessity. Kwan v. Donovan285 involved an immigration attorney who filed for labor certification of an alien who was 

to perform bookkeeping, secretarial, and translation duties. The Department of Labor denied the petition for labor certification, concluding that the combination of duties and the language requirements were 

unduly restrictive and not warranted by business necessity. The DOL’s 

certifying officer said: “The fact that the employer has other individuals 

performing translation tasks demonstrates that he has alternative means 

to perform these duties. While it may be advantageous to have a bookkeeper perform part-time secretarial and translation duties, it is clearly 

not a business necessity, but rather an employer preference or convenience. It is not the job of a bookkeeper to perform translation duties 

281. Austin T. Fragomen Jr., Careen Shannon, & Daniel Montalvo, Labor Certification Handbook § 6:1 (2008).

282. 20 C.F.R. § 656.17(h)(1) (2005).

283. Id. See also O*Net Online, http://online.onetcenter.org/find/. 

284. 20 C.F.R. § 656.17(h)(1) (2008). See also Matter of Info. Indus., Inc., 88 INA 82 

(BALCA 1989) (en banc).

285. 777 F.2d 479 (9th Cir. 1985).
immigration law: a primer part iv

51

and hence precludes the referral of qualified U.S. workers.”286 The 

court affirmed on the grounds that the agency’s decision was not arbitrary and capricious.287

3. Diversity Immigrants

Every year the United States selects up to 55,000 persons for immigrant 

visas in a diversity lottery.288 The lottery is weighted in favor of persons 

coming from “low-sending” countries in low-sending regions289 pursuant to an intricate formula designed to diversify the immigrant stream. 

To be eligible, the alien must have “at least a high school education or 

its equivalent” and within the last five years have “at least 2 years of 

work experience in an occupation which requires at least 2 years of 

training or experience.”290

The statute states that diversity lottery winners “shall remain eligible to receive such visa only through the end of the specific fiscal year 

for which they are selected.”291 In several cases, aliens who qualified 

for diversity visas filed suit to obtain them after being denied visas by 

the immigration authorities on the ground that eligibility expired with 

the end of the fiscal year.292 The courts recognized that the denials 

were “the result of sheer bureaucratic ineptitude or intransigence” and 

that the “plaintiffs were victims of [a] bureaucratic nightmare.”293 Nev286. Id. at 482.

287. Id.

288. See 8 U.S.C. §§ 1151(e) & 1153(c) (2006).

289. For diversity lottery purposes, the world is divided into six regions: Africa, Asia, 

Europe, North America (excluding Mexico), Oceania, and South America (including 

Mexico, Central America, and the Caribbean). The Department of Homeland Security 

annually divides the world between low-sending and high-sending regions and foreign 

states: high-sending regions are regions that during the previous five years accounted for 

more than 1/6th of all immigrant visas; high-sending states are those that received more 

than 50,000 visas during the period. Nationals of high-sending states (e.g., Brazil, Canada, 

Columbia) are ineligible for the diversity lottery. The lottery is weighted in favor of immigrants from low-sending regions. Id. § 1153(c). For a recent list of the worldwide distribution of diversity lottery winners, see Diversity Lottery 2008 (DV–2008) Results, available at 

http://travel.state.gov/visa/immigrants/types/types_1317.html.

290. 8 U.S.C. § 1153(c)(2) (2006).

291. Id. § 1154(a)(1)(I)(ii)(II).

292. See, e.g., Coraggioso v. Ashcroft, 355 F.3d 730 (3d Cir. 2004).

293. Mohamed v. Gonzales, 436 F.3d 79, 81 (2d Cir. 2006) (internal quotations and 

citations omitted).
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ertheless the court, in Mohamed v. Gonzales, held “that because the 

INS lacks the statutory authority to grant the relief sought by plaintiffs 

under the DV [Diversity] Program, plaintiffs’ claims are now moot.”294

It continued: “The relevant statutes and regulations impose a strict 

one-year time limit on the granting of diversity visas. . . . Despite the 

harsh consequences of this result, we are compelled, as our sister circuits have recognized, to apply the unambiguous language of the operative statutory framework.”295

294. Id. at 80.

295. Id. at 80–81. See also Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003) 

(doctrine of equitable tolling inapplicable).
53

V. Grounds for Inadmissibility

Even an alien who fits within one of the immigrant or nonimmigrant 

categories will be denied admission if she falls within one or more of 

the grounds for inadmissibility. Most inadmissibility grounds, however, 

have waiver provisions, and nonimmigrants can seek a general 

waiver.296 The statute divides the grounds of inadmissibility into ten 

categories:297 health-related grounds; criminal and related grounds;

security and related grounds; public charge grounds;

298 labor certification;

299 illegal entrants and immigration violators; failure to have 

proper documents; ineligible for citizenship; aliens previously removed; and a miscellaneous category (which includes practicing polygamists, among others). Conceptually, it may be helpful to classify 

the grounds of inadmissibility as follows: grounds related to immigration control; political and national security grounds; criminal grounds;

economic grounds; and public health and morals.300

A. Immigration Control

Aliens present in the United States without having been admitted or 

paroled301—in other words, surreptitious entrants—are inadmissible 

and, therefore, subject to removal.302 And “[a]ny alien who at any time 

knowingly has encouraged, induced, assisted, abetted, or aided any 

296. For the general waiver, see 8 U.S.C. § 1182(d)(3) (2006).

297. 8 U.S.C. § 1182(a)(1)–(10) (2006).

298. See generally Kevin K. Ban, The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Are You Wealthy Enough to be Reunited With Your Alien Family Members?, 99-05 Immigr. Briefings 1 (May 1999).

299. Labor certification is addressed supra Part IV.B.2.b. Although failure to receive 

labor certification is considered a ground for inadmissibility, conceptually it makes sense 

to treat the need for labor certification as part of the affirmative case for admission.

300. See Stephen Legomsky & Cristina M. Rodríguez, Immigration and Refugee Law 

and Policy, chap. 5 (5th ed. 2009).

301. The USCIS may allow someone to come into the United States “for urgent 

humanitarian reasons or significant public benefit” without ever admitting them into the 

United States, creating the legal fiction that the person is not present. See 8 U.S.C. 

§ 1182(d)(5) (2006). 

302. 8 U.S.C. § 1182(a)(6)(A)(i) (2006). An exception exists for certain battered 

spouses and children. Id. § 1182(a)(6)(A)(ii).
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other alien to enter or to try to enter the United States in violation of 

the law is inadmissible.”303 A waiver is available for this ground where 

the alien smuggling only involved close family members.304 Additionally, one who has been ordered removed during the process of seeking 

admission is subject to a nondiscretionary five-year bar to admission, 

and one who has been ordered removed after having been admitted is 

subject to a nondiscretionary ten-year bar to readmission.305 An alien 

“who has been unlawfully present in the United States for an aggregate 

period of more than 1 year, or has been ordered removed . . . and who 

enters or attempts to reenter the United States without being admitted 

is inadmissible.”306 According to the BIA, “[s]ection 212(a)(9)(C)(i)307

differs significantly from section 212(a)(9)(A)(ii)308 in that it incorporates no temporal limits on inadmissibility; an individual who has reentered or attempted to reenter the United States [without seeking admission] after removal or prior unlawful presence is permanently inadmissible.”309

Failure to have the proper documents—passport, visa, and any 

other necessary document—renders a person inadmissible.310 Fraud 

and willful misrepresentation for the purpose of gaining an immigration benefit are also grounds for denial of admission.311 After an administrative hearing, a person engaged in document fraud can be ordered to cease and desist and can be assessed a civil money penalty.312

“An alien who is the subject of a final order” under these document 

fraud provisions is also inadmissible.313

An alien’s unlawful presence in the United States for more than 180 

days but less than a year makes the alien inadmissible for three years 

303. Id. § 1182(a)(6)(E).

304. Id. § 1182(d)(11).

305. Id. § 1182(a)(9)(A)(i) & (ii). The alien can seek advance consent to reapply prior 

to the end of the five- or ten-year period. See id. § 1182(a)(9)(A)(iii).

306. Id. § 1182(a)(9)(C)(i).

307. Id.

308. Id. § 1182(a)(9)(A)(ii).

309. In re Torres-Garcia, 23 I. & N. Dec. 866, 873 (BIA 2006).

310. 8 U.S.C. § 1182(a)(7) (2006).

311. Id. § 1182(a)(6)(C)(i). For possible waiver, see id. § 1182(i). There is also a related 

ground of inadmissibility for falsely claiming U.S. citizenship. Id. § 1182(a)(6)(C)(ii).

312. Id. § 1324c.

313. Id. § 1182(a)(6)(F)(i). For a potential waiver, see id. § 1182(d)(12).
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55

after his or her departure from the United States.314 A ten-year bar applies to those who have been unlawfully present for a year or more.315

Much complexity lies in the intricacies of these statutes, in the agency’s 

interpretation, and in the court’s equitable powers.316 The statute reads:

(B) Aliens unlawfully present

(i) In general

Any alien (other than an alien lawfully admitted for permanent residence) who—

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily 

departed the United States (. . .) prior to the commencement 

of [removal] proceedings . . . and again seeks admission 

within 3 years of the date of such alien’s departure or removal, or

(II) has been unlawfully present in the United States for 

one year or more, and who again seeks admission within 10 

years of the date of such alien’s departure or removal from 

the United States,

is inadmissible.317

A key question is during what period of time is an alien accruing unlawful presence? Aliens who stay beyond the period authorized and 

those who enter surreptitiously are unlawfully present.318 The statute 

tolls the period of unlawful presence for 120 days for those aliens who 

were admitted or paroled, who have filed a nonfrivolous application 

for extension or change of status, and who have not engaged in unauthorized employment.319 Because of backlogs in processing, this period 

of tolling has been administratively extended to cover the entire period 

314. Id. § 1182(a)(9)(B)(i)(I).

315. Id. § 1182(a)(9)(B)(i)(II).

316. For an in-depth treatment of these issues, see James Feroli, Unlawful Presence, 

Voluntary Departure, and Stays of Voluntary Departure, 06-01 Immigr. Briefings 1 (Jan. 

2006).

317. 8 U.S.C. § 1182(a)(9)(B) (2006). See id. at (B)(iii) for exceptions (minors, asylees, 

family unity, and abused spouses and children) and (B)(iv) for a waiver based on extreme 

hardship. 

318. Id. § 1182(a)(9)(B)(ii).

319. Id. § 1182(a)(9)(B)(iv).
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the application is pending as long as the other requirements are met.320

In order to benefit from the tolling provisions, the application for extension or change of status must have been filed prior to the expiration 

of authorized stay, and an alien cannot prolong this safe harbor by filing successive applications for extension or change of status once the 

period of authorized stay has expired.321

The three-year bar applies only if the alien takes voluntary departure prior to the commencement of removal proceedings. In contrast, 

the ten-year bar is triggered solely by the passage of time. Therefore, 

once removal proceedings have begun with the Notice to Appear, an 

alien who has been unlawfully present for more than 180 days but less 

than one year is not subject to either bar so long as she does not remain “unlawfully present” for a year. The period allowed for the alien 

to voluntarily depart “is considered a period of authorized stay,” but 

“unlawful presence accrues as of the date the privilege of voluntary 

departure expires and the order of removal takes effect.”322

As a result of this interpretation, someone who has been unlawfully 

present in the United States for 150 days and is granted 100 days to depart voluntarily prior to the commencement of the proceedings can 

stay in the United States for those 100 days without slipping into the 

three-year bar. And someone who has been in the United States in an 

unauthorized status for 360 days, and who accepts an order of voluntary departure (requiring him to depart in 60 days) after commencement of proceedings, will escape both the three- and the ten-year bar 

as long as he leaves on or before the expiration of the 60-day period. 

In actuality, this period can be extended by many months or years because the voluntary departure order, like most orders issued by an 

immigration judge, is stayed automatically during the pendency of an 

appeal to the BIA.323

320. Janice Podolny, U.S. Dep’t of Justice Memorandum for Thomas E. Cook, Interpretation of “Period of Stay Authorized by the Attorney General” in determining “unlawful presence” under INA § 212(a)(9)(B)(ii), 2003 WL 21101810 (Mar. 27, 2003). 

321. Id. 

322. Paul W. Virtue, U.S. Dep’t of Justice Memorandum, Section 212(a)(9)(B) Relating to Unlawful Presence 2 (Sept. 19, 1997), reprinted in 74 No. 37 Interpreter Releases 

Appendix III (Sept. 29, 1997).

323. 8 C.F.R. § 1003.6(a) (2008).
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Can the period of unlawful presence be further stayed or tolled 

during the process of judicial review? Several courts of appeals have 

said yes on either legal or equitable ground, concluding that the judiciary possesses the authority to stay the voluntary departure.324 One 

court has said no.325 Among the circuits that have concluded that they 

have the authority to stay an order of voluntary departure, there exists 

a split as to whether the alien has to specifically request a stay of the 

voluntary departure order or whether seeking stay of removal will be 

automatically treated as also seeking a stay of the voluntary departure 

order.

326 It is unclear whether the Supreme Court’s decision in Dada v. 

Mukasey327 will affect these rulings. In that case, the Court held that the 

period for voluntary departure is not tolled during the pendency of a 

motion to reopen removal proceedings.328

B. Political and National Security Grounds

Immigration and Nationality Act § 212(a)(3)329 organizes security and 

related grounds for inadmissibility into five categories: (1) those who 

seek to enter the United States to spy, engage in the export of prohibited technology or information, engage in other unlawful activity, or 

324. E.g., Thapa v. Gonzales, 460 F.3d 323, 329 (2d Cir. 2006) (and cases cited 

therein).

325. Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004).

326. Compare Iouri v. Ashcroft, 487 F.3d 76, 85 (2d Cir. 2007) (“we join the First and 

Seventh Circuits, both of which have held that an alien who wishes to stay the period for 

voluntary departure must explicitly ask for such a stay”), with Rife v. Ashcroft, 374 F.3d 

606, 616 (8th Cir. 2004) (“Because a motion to stay voluntary departure complements and 

in many cases may be ancillary to a motion to stay removal pending judicial review, we 

agree with the Ninth Circuit [and] hold that where an alien files a motion to stay removal 

before the period of voluntary departure expires, we will construe the motion to stay 

removal as including a timely motion to stay voluntary departure.” (internal quotation 

omitted)).

327. 128 S. Ct. 2307 (2008).

328. Finding no statutory authority for tolling in this situation, the Court concluded 

that:

If the alien is permitted to stay in the United States past the departure date to wait out the 

adjudication of the motion to reopen, he or she cannot then demand the full benefits of 

voluntary departure; for the benefit to the Government—a prompt and costless departure—would be lost.

Id. at 2319.

329. 8 U.S.C. § 1182(a)(3) (2006).
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overthrow the United States government by force;330 (2) terrorists 

broadly defined;331 (3) those who pose serious adverse foreign policy 

consequences;332 (4) immigrant aliens who are members of the Communist or other totalitarian party;333 and (5) those who participated in 

Nazi persecution or other forms of genocide.334

The terrorist-related grounds of inadmissibility335 have been the 

subject of expansion since 1996 and the Oklahoma City bombing.336

The broad “definition of ‘terrorist activity’ certainly encompasses more 

conduct than our society, and perhaps even Congress, has come to 

associate with traditional acts of terrorism, e.g., car bombs and assassinations,” but it is not unconstitutionally vague or overbroad.337

“Terrorist activity” falls into one of six categories of unlawful conduct: sabotage or highjacking “of any conveyance”; kidnapping under 

some circumstances; attacking an “internationally protected person”;

assassination; the use of any “biological agent, chemical agent, or nuclear weapon” or the use of ordinary weapons for a purpose other than 

monetary gain; or “a threat, attempt, or conspiracy to do any of the 

forgoing.”338 Under the definition, the conduct must be “unlawful un330. Id. § 1182(a)(3)(A).

331. Id. § 1182(a)(3)(B) & (F).

332. Id. § 1182(a)(3)(C).

333. Id. § 1182(a)(3)(D).

334. Id. § 1182(a)(3)(E).

335. For a comprehensive look at the terrorism-related grounds for inadmissibility, 

see Nicholas J. Perry, The Breadth and Impact of the Terrorism-Related Grounds of Inadmissibility of the INA, 06-10 Immigr. Briefings 1 (Oct. 2006). “The terrorism-related grounds of 

inadmissibility bar most other immigration benefits.” Id. (discussing cancellation of removal, temporary protected status, registry, voluntary departure, § 212(c), and family 

unity together with limited exceptions and waivers). 

336. See supra text accompanying notes 20–21.

337. McAllister v. Att’y Gen., 444 F.3d 178, 187 (3d Cir.), cert. denied, 127 S. Ct. 667 

(2006).

Malachy, a Nationalist Catholic, concededly committed two criminal acts in Belfast 

twenty-five years ago, and so he is branded guilty of “terrorist activity.” Those were terrible days which saw, among other horrors, rioting, the burning of vehicles, the demolition 

of buildings, and the harassment of Catholic children playing and walking to school. It 

was a time of violent political conflict. But that was then. No one now suggests that 

Malachy poses a threat to anyone, much less to our national security, but this is a fact that 

Congress does not permit us to consider.

Id. at 191–92 (Barry, J., concurring).

338. 8 U.S.C. § 1182(a)(3)(B)(iii) (2006).
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der the laws of the place where it is committed (or which, if it had been 

committed in the United States, would be unlawful under the laws of 

the United States or any State).”339 It is an open question whether “unlawful” should be interpreted to mean “criminal.”340 And the BIA has 

said that it cannot assess unlawfulness by looking at the totality of the 

circumstance: “[W]e find that Congress intentionally drafted the terrorist bars . . . very broadly, to include even those people described as 

‘freedom fighters,’ and it did not intend to give us discretion to create 

exceptions for members of organizations to which our Government 

might be sympathetic.”341

A person “engage[s] in terrorist activity” if she fits into one or 

more of six categories of conduct: committing or inciting to commit a 

terrorist activity; preparing or planning a terrorist activity; reconnoitering potential targets; soliciting funds for a terrorist activity or terrorist 

organization; soliciting individuals to engage in terrorist activity or for 

membership in a terrorist organization; and providing material support 

to terrorists or terrorist organizations.342

This last category is expansive. A person engages in a terrorist activity if she commits “an act that the actor knows, or reasonably should 

know, affords material support, including a safe house, transportation, 

communications, funds, transfer of funds or other material financial 

benefit, false documentation, weapons, explosives, or training” for terrorist activity, to terrorists, or to a terrorist organization.343 Where the 

government proves that an alien has provided support to a terrorist 

organization, it need not further prove that the alien intended that 

support as aid to the terrorist activity of the organization.344 The alien’s 

activity need not be illegal. In In re S-K-, the BIA concluded that an 

alien who had given $1,100 Singapore dollars (1/8th of her income) to 

339. Id.

340. See Perry, supra note 335.

341. In re S-K-, 23 I. & N. Dec. 936, 941 (BIA 2006) (“Rather, Congress attempted to 

balance the harsh provisions set forth in the Act with a waiver, but it only granted power 

to make exemptions to the Attorney General and the Secretaries of State and Homeland 

Security, who have not delegated such power to the Immigration Judges or the Board of 

Immigration Appeals.”).

342. 8 U.S.C. § 1182(a)(3)(B)(iv) (2006).

343. Id. § 1182(a)(3)(B)(iv)(VI).

344. See, e.g., Hussain v. Mukasey, 518 F.3d 534, 538–39 (7th Cir. 2008).
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a terrorist organization over an eleven-month period had provided 

material support.345 The BIA left for another day and another set of 

facts the question of whether de minimus support would make someone inadmissible. The Third Circuit held that the BIA did not act in an 

arbitrary or capricious manner in concluding that providing food and 

“setting up tents” constituted material support.346

The Act contemplates three types of terrorist organizations: first, 

foreign terrorist organizations so designated by the Secretary of State 

pursuant to section 219 of the INA;

347 second, terrorist organizations so 

designated by the Secretary of State in consultation with the Attorney 

General and Secretary of Homeland Security upon finding that the organization engages in terrorist activities as described in this ground of 

inadmissibility;

348 and third, other undesignated groups (at least two 

people) engaging in terrorist activities as described in this ground of 

inadmissibility.349

The Act creates nine categories of aliens inadmissible for terrorist 

activities:

350

• “An alien who has engaged in a terrorist activity.”

• Aliens who the government “knows, or has a reasonable 

ground to believe, is engaged in or is likely to engage after entry in a terrorist activity.”

• “An alien who has under circumstances indicating an intention 

to cause death or serious bodily harm, incited terrorist activity.”

• A representative of a terrorist organization or “a political, social, or other group that endorses or espouses terrorist activity.”351

• A member of a designated terrorist organization.

• A member of an undesignated terrorist organization “unless 

the alien can demonstrate by clear and convincing evidence 

345. S-K-, 23 I. & N. Dec. at 945.

346. Singh-Kaur v. Ashcroft, 385 F.3d 293, 299 (3d Cir. 2004).

347. See 8 U.S.C. § 1182(a)(3)(B)(vi)(I) (2006).

348. Id. § 1182(a)(3)(B)(vi)(II).

349. Id. § 1182(a)(3)(B)(vi)(III).

350. Id. § 1182(a)(3)(B)(i)(I)–(IX).

351. For a definition of “representative,” see id. § 1182(a)(3)(B)(v). 
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that the alien did not know, and should not reasonably have 

known, that the organization was a terrorist organization.”

• “An alien who endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support for a terrorist organization.”

• “An alien who has received military-type training352 from or on 

behalf of” a terrorist organization.

• “Any alien who is the spouse or the child of an alien who is inadmissible under this paragraph, if the activity causing the inadmissibility occurred within the last five years.”

Aliens determined by the Secretary of State or the Attorney General, in 

consultation with the other, to be associated with a terrorist organization, and whose presence in the United States could pose a danger, are 

inadmissible under a separate ground.353 The Secretary of State, in consultation with the Secretary of Homeland Security and the Attorney 

General, or the Secretary of Homeland Security, in consultation with 

the Attorney General and the Secretary of State, can exempt certain 

individuals and certain groups from many of the terrorist grounds of 

inadmissibility.354

C. Criminal and Related Grounds

The statute contains several categories of inadmissibility based on 

criminal and related grounds. Any alien convicted of or admitting to 

committing a “crime involving moral turpitude” or most drug-related 

crimes is inadmissible.355 An exception exists for non-drug-related 

crimes if the alien was younger than eighteen at the time the crime was 

committed and more than five years have elapsed since release.356 A 

second exception exists for non-drug-related crimes where “the maximum penalty possible for the crime . . . did not exceed imprisonment 

for one year and, if the alien was convicted of such crime, the alien was 

352. See 18 U.S.C. § 2339D(c)(1) (2006) (defining military-type training).

353. 8 U.S.C. § 1182(a)(3)(F) (2006).

354. Id. § 1182(d)(3)(B), as amended by the Consolidated Appropriations Act, 2008, 

Pub. L. 110-161, Div. J., § 691, 121 Stat. 1844 (Dec. 26, 2007).

355. Id. § 1182(a)(2)(A)(i) & (C).

356. Id. § 1182(a)(2)(A)(ii)(I).
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not sentenced to a term of imprisonment in excess of 6 months” regardless of the term served.357

A crime involving moral turpitude “refers generally to conduct 

which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to 

society in general.”358 These crimes require “acts [that] are considered 

malum in se: that is, the acts are criminal because their nature is morally reprehensible and are not criminal simply by reason of statutory 

prohibition.”359 Normally the offense must “require the offender to act 

with a vicious motive or corrupt mind” such that intent is important in 

determining moral turpitude.360

Rather than retrying the criminal case to determine whether the 

alien committed a crime involving moral turpitude, the immigration 

judge, the Board of Immigration Appeals, and any reviewing court apply a modified categorical approach, looking at the statute to determine whether the crime involves moral turpitude. “The starting point 

in determining whether a crime involves moral turpitude is the language of the statute itself”361 as seen through the prism of judicial interpretation.362 “As a general rule, when the statute under which an 

alien is convicted includes some crimes which may, and some which 

may not, involve moral turpitude, an alien is not excludable or deportable on moral turpitude grounds unless the record of conviction itself 

demonstrates that the particular offense involved moral turpitude.”363

357. Id. § 1182(a)(2)(A)(ii)(II).

358. Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 

1995).

359. Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007).

360. E.g., Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.6 (8th Cir. 2006) (recklessness without more insufficient for finding that crime involves moral turpitude). But see

Knapik v. Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004) (deferring to BIA’s determination that 

recklessness sometimes involves moral turpitude).

361. In re L-V-C-, 22 I. & N. Dec. 594, 597 (BIA 1999). See also Shepard v. United 

States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990).

362. See L-V-C-, 22 I. & N. Dec. at 597–98.

363. Id. at 603. The Ninth Circuit has concluded that the modified categorical approach applies only “when the particular elements in the crime of conviction are broader 

than the generic crime. When the crime of conviction is missing an element of the generic 

crime altogether, we can never find that ‘a jury was actually required to find all the elements of’ the generic crime.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 

2007).
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Therefore, “the crime of causing a financial institution to fail to file 

currency transaction reports and structuring currency transactions to 

evade reporting requirements” was not a crime involving moral turpitude where “not all the offenses under the statute involved . . . a deliberate concealment.”364 But where the relevant statute “requires proof of 

a deliberate act to conceal . . . illegal activity [e.g., money laundering 

activity]. . . a violation of that statute is categorically a crime involving 

moral turpitude.”365

In In re Babaisakov,

366 the BIA held that

the categorical and modified categorical approaches, as we understand Taylor and Shepard, properly apply only when the statute currently being implemented or administered demands a focus exclusively on the elements of a prior conviction. Further, 

neither Taylor nor Shepard demands the use of the categorical 

or the modified categorical approach to any currently required 

determination that is not tied to an element of a prior conviction.367

The BIA went on to state that, while

the removal provision demands a prior conviction for fraud or 

deceit . . . the statute also requires a separate finding as to loss 

that is not tied to the elements of any State or Federal criminal 

statute. The categorical and modified categorical approaches 

properly govern the assessment as to whether the elements of 

the conviction for fraud or deceit are present, but they do not apply when assessing the additional “nonelement” factor of victim 

loss.368

“The question, then, is whether the conviction record is an adequate 

source for the information demanded by the removal statute.”369 When

“looking for a fact that was part of the crime, but not a fact that must 

have been proved to establish guilt, the independent assessment of that 

fact during a removal hearing does not encroach on the principal pur364. In re Tejwani, 24 I. & N. Dec. 97, 99 (BIA 2007).

365. Id.

366. 24 I. & N. Dec. 306 (BIA 2007) (aggravated felony case).

367. Id. at 309.

368. Id.

369. Id. at 318.
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pose of the criminal proceedings, which was the determination of guilt 

under the elements of the criminal statute.”370

Assault with intent to injure a person or the property of another 

has been found to be a crime involving moral turpitude.371 But assault 

without such intent or some other aggravating factor has been found 

not to be a crime involving moral turpitude.372 Child abuse,373 spousal 

abuse,374 contributing to the delinquency of a minor,375 child pornography,376 aggravated driving under the influence,377 manslaughter,378

arson,379 burglary,380 receipt of stolen property,381 fraud in obtaining 

food stamps,382 immigration fraud,383 and fraud in obtaining student 

financial aid384 have been found to be crimes involving moral turpitude.

An “alien convicted of 2 or more offenses” where the “aggregate 

sentences to confinement were 5 years or more is inadmissible” 

whether or not the crimes involved moral turpitude, the convictions 

occurred in a single trial, or “the offenses arose from a single scheme 

of misconduct.”385 Drug traffickers, persons involved in prostitution 

and commercialized vice, certain criminal aliens who are immune 

from prosecution, foreign government officials who severely violate 

religious freedom, traffickers in persons and those who benefit from 

370. Id. at 321.

371. See, e.g., Nguyen v. Reno, 211 F.3d 692, 694–95 (1st Cir. 2000).

372. See, e.g., Partyka v. Att’y Gen. of U.S., 417 F.3d 408, 416 (3d Cir. 2005) (assault on 

police officer not necessarily a crime involving moral turpitude).

373. Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir. 2003).

374. Grageda v. INS, 12 F.3d 919 (9th Cir. 1993).

375. Sheikh v. Gonzales, 427 F.3d 1077, 1082 (8th Cir. 2005).

376. In re Olquin-Rufino, 23 I. & N. Dec. 896 (BIA 2006).

377. In re Lopez-Meza, 22 I. & N. Dec. 1188, 1194–95 (BIA 1999). But see HernandezMartinez v. Ashcroft, 329 F.3d 1117, reh’g denied, 343 F.3d 1075 (9th Cir. 2003).

378. Carter v. INS, 90 F.3d 14, 18 (1st Cir. 1996).

379. Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1311 (11th Cir. 2006).

380. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020 (9th Cir. 2005).

381. Smriko v. Ashcroft, 387 F.3d 279, 282–83 (3d Cir. 2004).

382. Abdelqadar v. Gonzales, 413 F.3d 668, 671–72 (7th Cir. 2005).

383. Omagah v. Ashcroft, 288 F.3d 254, 261 (5th Cir. 2002).

384. Izedonmwen v. INS, 37 F.3d 416, 417 (8th Cir. 1994).

385. 8 U.S.C. § 1182(a)(2)(B) (2006).
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such trafficking, and money launderers are also inadmissible.386 Some 

of these grounds can be waived.387

Conviction for purposes of the immigration laws means either “a 

formal judgment of guilt of the alien entered by a court” or (1) there 

has been a finding of guilt, guilty plea, a plea of nolo contendere, or 

the admission of “sufficient facts to warrant a finding of guilt,” and 

(2) “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty.”388 Deferred adjudication,389 probation,390

convictions that have been expunged,391 and convictions that will be 

vacated after the completion of a rehabilitation program392 are all considered convictions under the Act. A question exists, however, as to 

whether deferred adjudications under state first-time offender acts constitute convictions. The Board of Immigration Appeals answered in the 

affirmative393 and some circuits have deferred to the BIA’s analysis.394

The Ninth Circuit, however, disagreed.395 A conviction vacated on substantive grounds is not a conviction under the Act.396

D. Economic, Public Health, and Morals Grounds

Aliens who are “likely at any time to become a public charge [are] inadmissible.”397 In determining this ground of inadmissibility, immigration officials take into account the alien’s age, health, family status, financial resources, education, and skills.398 In some instances, a binding 

affidavit of support from the petitioning relative will be required to satisfy the immigration authorities.399

386. Id. § 1182(a)(2)(C)–(E) & (G)–(I).

387. See id. § 1182(h).

388. Id. § 1101(a)(48)(A).

389. Salazar-Regino v. Trominski, 415 F.3d 436, 447–48 (5th Cir. 2005).

390. Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005).

391. Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004).

392. Herrera-Inirio v. INS, 208 F.3d 299, 306 (1st Cir. 2000).

393. See In re Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002); In re Roldan-Santoyo, 

22 I. & N. Dec. 512 (BIA 1999).

394. E.g., Salazar-Regino v. Trominski, 415 F.3d 436, 448 (5th Cir. 2005).

395. Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000).

396. Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. 2005). 

397. 8 U.S.C. § 1182(a)(4) (2006).

398. Id. § 1182(a)(4)(B)(i)(I)–(V).

399. Id. § 1182(a)(4)(B)(ii).
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Practicing polygamists,400 prostitutes,401 drug abusers,402 and drug 

addicts403 are inadmissible. Persons with certain infectious diseases, as 

laid out by statute or determined by the Secretary for Health and Human Services, and persons with certain physical and mental disorders 

are likewise inadmissible.404

400. Id. § 1182(a)(10)(A).

401. Id. § 1182(a)(2)(D).

402. Id. § 1182(a)(1)(A)(iv).

403. Id.

404. Id. § 1182(a)(1)(A)(iii)(I).
67

VI. Admission Procedures

The process for obtaining an immigrant visa begins either with the filing of a labor certification application with the Department of Labor 

where required or with the filing of a visa petition with the U.S. Citizenship and Immigration Services (USCIS). Except in those few instances where the statute allows self-petitioning, the petitioner is the 

family member or employer whose relationship with the noncitizen 

beneficiary provides the basis for the petition. The USCIS adjudicates 

the visa petition, determining whether the noncitizen beneficiary qualifies for the relevant immigrant visa. Upon approval by the USCIS of the 

visa petition, the beneficiary can file a visa application with the appropriate U.S. consulate. Before a visa is issued, the visa consular official 

will determine—with the help of a personal interview, police reports, 

and a medical report—whether any one of the grounds for inadmissibility applies. Once the immigrant visa is issued, the noncitizen has six 

months in which to travel to the United States.

Although the process for obtaining certain nonimmigrant visas begins in the United States with application made to either the Department of Labor or the USCIS, the process for obtaining most nonimmigrant visas begins at the appropriate U.S. consulate abroad. The noncitizen must demonstrate that she meets the requirements for the applied-for visa and that she is not inadmissible. Once the immigrant visa 

is issued, the noncitizen can travel to the United States and seek entry 

pursuant to the terms of the visa. For example, F-1 student visas are 

generally issued for the duration of student status and allow multiple 

entries into the United States. Noncitizens from certain countries with 

low rates of immigration fraud can travel to the United States for short 

periods of time without having to obtain a visa.

Upon arrival at a U.S. port of entry, the noncitizen faces inspection 

by U.S. Customs and Border Protection (CBP). The U.S. immigration 

scheme provides a double-check entry system, with the CBP making a 

determination—independent of the visa consular official’s determination—of the alien’s admissibility or inadmissibility. If the alien has 

made material misrepresentations or does not have the proper documents, she is placed in expedited removal proceedings.405 For other 

405. Id. §§ 1225(b)(1)(A) & 1182(a)(6)(C), (7). 
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aliens, the burden is on the noncitizen to show that she is “clearly and 

beyond a doubt entitled to be admitted.”406 Assuming that the alien 

makes the requisite showing—and with over one million arrivals daily, 

most of these reviews are cursory—the alien is admitted into the 

United States permanently (if an immigrant) or for a certain period of 

time (if a nonimmigrant). If, however, the alien has failed to demonstrate that she is “clearly and beyond a doubt entitled to be admitted,” 

the alien will be detained and placed in a removal proceeding407 unless 

she is permitted to withdraw her application for admission.408

A. Expedited Removal of Arriving Aliens

As stated above, arriving aliens who are determined to be inadmissible 

because of material misrepresentation or for failure to have the proper 

entry documents are subject to expedited removal. Additionally, aliens 

who have not been admitted or paroled (i.e., clandestine entrants) and 

are found within 100 miles of the border are placed in expedited removal unless they can show that they have been continuously present 

in the United States for the previous fourteen days.409 Noncitizens who 

are granted advance parole are not considered arriving aliens for expedited removal purposes.410

Those subject to expedited removal are ordered removed “without 

further hearing or review unless the alien indicates either an intention 

to apply for asylum . . . or a fear of persecution.”411 Unless paroled 

into the country for exigent circumstances, an alien in expedited removal is detained until removed.412 In American Immigration Lawyers 

Ass’n v. Reno,

413 the court upheld the expedited removal proceedings 

against various challenges, including a procedural due process challenge. Following the long line of plenary power cases, the court dis406. Id. § 1225(b)(2)(A).

407. Id.

408. Id. § 1225(a)(4).

409. Notice Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01 (Aug. 

11, 2004).

410. Bona v. Gonzales, 425 F.3d 663, 667–68 (9th Cir. 2005).

411. 8 U.S.C. § 1225(b)(1)(A)(i) (2006).

412. 8 C.F.R. §§ 235.3(b)(2)(iii) & 1235.3(b)(2)(iii) (2008).

413. 18 F. Supp. 2d 38 (D.D.C. 1998).
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missed the due process arguments, concluding that arriving aliens 

“have no due process rights.”414

Congress has stripped courts of jurisdiction to review most matters 

pertaining to expedited removal. Pursuant to the INA, courts may not 

“enter declaratory, injunctive, or other equitable relief,” except as provided by statute, or “certify a class” in any action brought to review 

expedited removal.415 A person subject to expedited removal can bring 

a habeas corpus proceeding to claim (1) that he was not ordered removed pursuant to the expedited removal procedures, (2) that he is a 

citizen, or (3) that he is a lawfully admitted permanent resident alien, a 

refugee, or an asylee.416 Congress also provided for limited review in 

the U.S. District Court for the District of Columbia to determine 

whether the expedited removal statute and its implementing regulations 

are constitutional and to determine whether implementation is in accord with the statute.417

B. Removal of Other Arriving Aliens

The Illegal Immigration Reform & Immigration Responsibility Act of 

1996 abolished the distinction between exclusion proceedings and deportation proceedings, replacing them with a generic removal proceeding.418 An Immigration and Customs Enforcement attorney prosecutes 

the case for removal before an immigration judge who is an employee 

of the Department of Justice’s Executive Office for Immigration Review. The immigration judge possesses powers and responsibilities 

similar to any other administrative law judge.419 The alien has the right 

to be represented by an attorney (at no expense to the government) 

414. Id. at 60.

415. 8 U.S.C. § 1252(e)(1) (2006).

416. Id. § 1252(e)(2). See Brumme v. INS, 275 F.3d 443, 448 (5th Cir. 2001) (distinguishing INS v. St. Cyr, 533 U.S. 289 (2001), the court concluded that it had no jurisdiction to 

review the questions of whether alien was admissible or entitled to relief from inadmissibility). But see American–Arab Anti-Discrimination Comm. v. Ashcroft, 272 F. Supp. 2d 

650, 663 (E.D. Mich. 2003) (distinguishing Brumme, “the Court [found] that under the 

circumstances here, it has jurisdiction on habeas review to determine whether the expedited removal statute was lawfully applied to petitioners in the first place”).

417. 8 U.S.C. § 1252(e)(3) (2006).

418. Seeid. § 1229a.

419. See id. § 1229a(b)(1).
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together with the usual bundle of procedural rights (i.e., right to confront, cross-examine, and impeach adverse evidence; right to present 

evidence). 

Although the determinations to remove inadmissible and deportable aliens both occur in removal proceedings, an important difference 

exists between the removal of inadmissible aliens and the removal of 

deportable aliens. In both cases, the alien has the burden of proof with 

respect to issues pertaining to relief from removal.420 In a deportation 

action, once the alien has established “by clear and convincing evidence” that he is in the United States lawfully, the burden shifts to the 

government to prove by the same standard that the alien is deportable.421 In contrast, an alien applicant for admission has the burden of 

proving that he “is clearly and beyond doubt entitled to be admitted 

and is not inadmissible.”422

One question that may arise with respect to returning permanent 

residents is whether they are seeking admission into the United States 

for immigration purposes. If they are deemed to be seeking admission, 

the statute treats them—both substantively and procedurally—just like 

it does first-time entrants. Procedurally, “[t]he question of whether an 

alien is an applicant for admission is important because such applicants must demonstrate that they are ‘clearly and beyond doubt entitled to be admitted and [are] not inadmissible’.”423 Substantively, for a 

few aliens this can be a crucial question because an alien might be inadmissible but not deportable; therefore, for these aliens, the fact of 

seeking admission may be determinative of the question of removability. The statute is silent as to who bears the burden of proving whether 

a returning permanent resident alien is seeking an admission.424 To 

ameliorate the harshness of such a result, the INA provides that 

an alien lawfully admitted for permanent residence in the United 

States shall not be regarded as seeking admission into the 

420. Id. § 1229a(c)(4). 

421. Id. § 1229a(c)(2)(B) & (3).

422. Id. § 1229a(c)(2)(A). Judicial review of removal orders is discussed supra Part II.

423. Sandoval-Loffredo v. Gonzales, 414 F.3d 892, 894 (8th Cir. 2005).

424. Id. at 895 (court didn’t decide the question because immigration judge had 

concluded that the government had shown by clear and convincing evidence that alien 

had committed a crime while outside the United States and was thus required to be 

treated as an alien seeking admission).
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United States for purposes of the immigration laws unless the 

alien (i) has abandoned or relinquished that status, (ii) has been 

absent from the United States for a continuous period in excess 

of 180 days, (iii) engaged in illegal activity after having departed 

the United States, (iv) has departed from the United States while 

under legal process seeking removal . . . , (v) has committed an 

offense [rendering the alien inadmissible unless offense is 

waived], or (vi) is attempting to enter [clandestinely].

425

425. 8 U.S.C. § 1101(a)(13)(C) (2006). At one time the statute defined “entry” rather 

than “admission,” and the issue was whether a returning permanent resident alien was 

attempting to “enter” the United States. See Rosenberg v. Fleuti, 374 U.S. 449 (1963) (interpreting statute to mean that alien is not seeking “entry” where trip abroad was “innocent, casual, and brief”). Since “admission” requires a “lawful entry,” 8 U.S.C. 

§ 1101(a)(13)(A) (2006), and since some grounds of deportability are tied to “entry” and 

not “admission,” e.g., 8 U.S.C. § 1227(a)(1)(A) (2006), there is a question of whether the 

Fleuti doctrine survives the definitional switch from “entry” to “admission” in the statute. 

See, e.g., Malagon de Fuentes v. Gonzales, 462 F.3d 498, 501–02 (5th Cir. 2006) (consistent 

with Third and Seventh Circuits, court held that Fleuti was superseded by statute). For a 

more in-depth look at the meanings of “entry” and “admission,” see Gerald Seipp, Law of 

“Entry” and “Admission”: Simple Words, Complex Concepts, 05-11 Immigr. Briefings 1 (Nov. 

2005).
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VII. Grounds for Deportation

The Immigration and Nationality Act divides deportation grounds into 

six broad categories: immigration status violations; criminal offenses;

failure to register and document falsification; security and related 

grounds; public charge grounds; and unlawful voting.426 The discussion of some of the grounds for inadmissibility, particularly dealing 

with national security issues and crimes involving moral turpitude, will 

be relevant to this deportability section.427

A. Immigration Status Violations

Aliens are deportable who were inadmissible “at the time of entry or 

adjustment of status,” are “present in the United States in violation of 

the Act,” have violated the terms of their nonimmigrant status, have 

violated the conditions of admission, or have had their conditional 

residence terminated.428 In Francis v. Gonzales,

429 the Second Circuit 

reviewed an order that found an alien removable for being inadmissible at the time of entry because he had two marijuana convictions 

prior to entry. In vacating the order, the court concluded that a Jamaican “rap sheet” was insufficient to establish deportability by clear and 

convincing evidence: “In identifying reliable evidence, there are good 

reasons to prefer records emanating from neutral courts and magistrates instead of from agencies whose jobs are to seek to detect and 

prosecute crimes.”430

An alien who knowingly encourages, induces, assists, abets, or aids 

“any other alien to enter or to try to enter the United States in violation 

of the law is deportable,” provided that the act occurred prior to, at the 

426. INA § 237(a)(1)–(6), 8 U.S.C. § 1227(a)(1)–(6) (2006).

427. See supra Part V.B–C.

428. 8 U.S.C. § 1227(a)(1)(A)–(D) (2006).

429. 442 F.3d 131 (2d Cir. 2006).

430. Id. at 143 (“Even if we were to credit a domestic rap sheet, moreover, a report 

from a foreign police department is even less reliable. We ordinarily are without dependable means to assess accurately the reliability of a foreign jurisdiction’s prosecutorial or 

police records, and there is no indication that the IJ here had dependable means either.”).
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time of, or within five years of “the date of any entry.”431 Deferring to 

the agency’s interpretation of the statute pursuant to Chevron, the 

Ninth Circuit, in Hernandez-Guadarrama v. Ashcroft,

432 concluded that 

aliens can be deported for alien smuggling even when they don’t assist 

in the border crossing itself.433

Two provisions cover deportation for marriage fraud. A conditional permanent resident whose marriage ends within two years of 

admission is deportable unless “the alien establishes . . . that the marriage was not contracted for the purposes” of obtaining immigration 

benefits.434 An alien can also be deported if it is determined that “the 

alien has failed or refused to fulfill the alien’s marital agreement” 

where the marriage was entered into for the purpose of obtaining an 

immigration benefit.435

B. Criminal Offenses

Over the past two decades, Congress has greatly expanded the category 

of crimes for which an alien can be deported, and the executive branch

has greatly increased the number of aliens who have been physically 

deported for criminal offenses. Deportable crimes include crimes involving moral turpitude,436 “aggravated felonies,”437 drug crimes, firearms offenses, and crimes involving domestic violence. Additionally, 

drug abusers and drug addicts are deportable without need for a 

criminal conviction. A survey of the moral turpitude and aggravated 

felony grounds for deportation will serve to expose some of the issues 

raised with respect to criminal deportation grounds generally. 

431. 8 U.S.C. § 1227(a)(1)(E) (2006). There is no longer a statutory definition of “entry.” Seesupra note 425.

432. 394 F.3d 674 (9th Cir. 2005).

433. Id. at 678–79 (conditional permanent resident alien could be deported for 

knowingly transporting illegal entrants as part of the scheme to get them from Point A in 

Mexico to Point B in the United States even though the conditional permanent resident 

took no part in the actual border crossing).

434. 8 U.S.C. § 1227(a)(1)(G)(i) (2006). 

435. Id. § 1227(a)(1)(G)(ii).

436. For a discussion of the meaning of “moral turpitude,” see supra Part V.C.

437. For the definition of “aggravated felony,” see 8 U.S.C. § 1101(a)(43)(A)–(U) 

(2006). See also infra Part VII.B.2.
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1. Crimes Involving Moral Turpitude

An alien is deportable upon conviction438 of a single crime of moral 

turpitude, provided that the criminal activity occurred within five years 

after admission439 and the conviction is for a crime for “which a sentence of one year or longer may be imposed.”440 One question is 

whether adjustment from nonimmigrant to immigrant status is an “admission” for purposes of the five-year time frame. The court in Abdelqadar v. Gonzales441 distinguished In re Rosas-Ramirez,

442 concluding 

that, for purposes of the moral turpitude deportation ground, an alien 

does not make a new “admission” into the United States at the time of 

adjustment of status.443

An alien is deportable upon conviction of more than one crime of 

moral turpitude “not arising out of a single scheme of criminal misconduct” regardless of how long he has been in the United States, 

whether he was confined pursuant to the conviction, or “whether the 

convictions were in a single trial.”444 The courts of appeals have split 

on the meaning of “single scheme of criminal misconduct.” 

Abdelqadar represents the majority view. That case involved a permanent resident alien ordered removed after being convicted twice of 

the crime of “purchasing food stamps from welfare recipients.”445 The 

acts, which were the basis of the conviction, occurred two days apart.446

Acknowledging that these two crimes would be treated as a single 

scheme under the Sentencing Guidelines, the Seventh Circuit nonetheless rejected that approach and followed the Board of Immigration Ap438. For a discussion of the definition of “conviction,” see supra notes 388–96 and 

accompanying text.

439. For a discussion of the definition of “admission,” see supra note 425. 

440. 8 U.S.C. § 1227(a)(2)(A)(i) (2006). See Aquino-Encarnacion v. INS, 296 F.3d 56 

(1st Cir. 2002) (alien deportable although sentence reduced to eleven months probation 

because actual sentence imposed is irrelevant to question of deportability).

441. 413 F.3d 668 (7th Cir. 2005).

442. 22 I. & N. Dec. 616, 624 (BIA 1999) (en banc) (BIA determined that clandestine 

entrant was “admitted” after adjustment of status and was, therefore, deportable because 

she was convicted of an aggravated felony “after admission”).

443. Abdelqadar, 413 F.3d at 673–74.

444. 8 U.S.C. § 1227(a)(2)(A)(ii) (2006).

445. Abdelqadar, 413 F.3d at 671 (purchasing food stamps from welfare recipients is 

considered a crime involving moral turpitude because fraud is an element of the crime).

446. Id. at 674.
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peals in applying the recidivist statutes.447 Deferring to the BIA, the 

court said: 

[T]wo offenses are not part of a “single scheme of criminal misconduct” when the acts are distinct and neither offense causes 

(or constitutes) the other. Robbing six people at one poker game 

therefore would be a single scheme even if it led to multiple 

convictions, as would all lesser included offenses of a criminal 

transaction. . . . [However,] a series of securities frauds by a 

broker who finds a new “mark” daily [are] distinct offenses 

rather than aspects of a single scheme, because the broker could 

stop after any of the frauds.448

The Ninth Circuit disagrees. In Gonzalez-Sandoval v. U.S. Immigration and Naturalization Service,

449 the court addressed the issue of 

“whether two bank robberies occurring within two days of each other, 

at the same bank, and which petitioner conceived and planned at the 

same time, constituted crimes ‘arising out of a single scheme of criminal misconduct,’” which would exempt the alien from deportation.450

The court concluded that “where credible, uncontradicted evidence, 

which is consistent with the circumstances of the crimes, shows that the 

two predicate crimes were planned at the same time and executed in 

accordance with that plan, we must hold that the government has failed 

in its burden to establish that the conviction did not arise out of ‘a single scheme of criminal misconduct.’”451

2. Aggravated Felonies

For much of the twentieth century, “the chief criminal deportation 

ground” was the moral turpitude deportation provision.452 Beginning in 

1988, Congress began expanding the crimes for which one could be

deported while cutting back on procedural protection and discretionary relief.453 The Anti-Drug Abuse Act of 1988 (ADAA) added “aggra447. Id. at 675 (referring to Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992)).

448. Id. (citations omitted).

449. 910 F.2d 614 (9th Cir. 1990).

450. Id. at 614–15.

451. Id. at 616.

452. See Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process 

and Policy 725 (4th ed. 1998).

453. See generally Brent Newcomb, Comment, Immigration Law and the Criminal 

Alien: A Comparison of Policies for Arbitrary Deportations of Legal Permanent Residents Con-
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77

vated felony” as a new but very limited ground for deportation, reserved for serious crimes (e.g., murder and drug and weapons trafficking), regardless of the sentence imposed and the longevity of the alien’s 

residence in the United States.454 The Immigration Act of 1990 expanded the scope of aggravated felony to include nonpolitical crimes 

of violence for which a prison sentence of at least five years was imposed.455 The Immigration and Nationality Technical Corrections Act 

of 1994 further broadened the definition of aggravated felony to include crimes such as theft and burglary where a five-year sentence was 

imposed.456 In addition to being deportable, “aggravated felons” receive a streamlined removal process, are subject to mandatory detention pending removal, and are ineligible for most forms of relief from 

deportation, including cancellation of removal and asylum. 

“Any alien who is convicted of an aggravated felony at any time 

after admission is deportable.”457 The statute defines twenty types of 

offenses that are considered aggravated felonies for immigration purposes.458 Because of the breadth of the definition and the severe consequences of a finding that an alien has been convicted of an aggravated 

felony, this has been an area of much litigation. Below is a small sampling of the myriad of cases, with a focus on the methodology by which 

the courts concluded that a particular crime either was or was not an 

aggravated felony. It should be noted initially that Chevron deference is 

not due the Board of Immigration Appeals with respect to interpretation of state and federal criminal statutes.459

The Supreme Court has addressed the “aggravated felony” question in recent years. In Lopez v. Gonzales,

460 the Court addressed the 

victed of Aggravated Felonies, 51 Okla. L. Rev. 697, 698–701 (1998) (brief history of congressional action since 1988). 

454. Pub. L. No. 100-690, 102 Stat. 4181 (1988). 

455. Pub. L. No. 101-649, 104 Stat. 4978 (1990). This Act also eliminated important 

discretionary relief for certain “aggravated felons.”

456. Pub. L. No. 103-416, 108 Stat. 4305 (1994). 

457. 8 U.S.C. § 1227(a)(2)(A)(iii) (2006). For purposes of this statute, “admission” 

includes adjustment of status. See Matter of Rosas, 23 I. & N. Dec. 448 (BIA 2002).

458. 8 U.S.C. § 1101(a)(43)(A)–(U) (2006).

459. See, e.g., Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005).

460. 549 U.S. 47 (2006). See also, Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (applying a 

“circumstance-specific” and not a “categorical” method of reading the “fraud and deceipt” provisions of the “aggravated felony” statute); Flores-Figueroa v. United States, 
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question of whether a state felony conviction for aiding and abetting 

the possession of cocaine was an aggravated felony where the offense 

would have only been a misdemeanor under the federal Controlled 

Substances Act (CSA). The case involved the interplay between two 

provisions in the definition of “aggravated felony.” First, “[i]llicit trafficking in a controlled substance (as defined in section 802 of Title 21), 

including a drug trafficking crime (as defined in section 924(c) of Title 

18)” is an aggravated felony.461 “The general phrase ‘illicit trafficking’ is 

left undefined, but § 924(c)(2) of Title 18 identifies the subcategory by 

defining ‘drug trafficking crime’ as ‘any felony punishable under the 

Controlled Substances Act.’”462 Second, the term “aggravated felony” 

“applies to an offense described in [section 1101(a)(43) of Title 8] 

whether in violation of Federal or State law . . . .”463

Examining the state statute, the majority found that “Lopez’s state

conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, a 

state felony. Mere possession is not, however, a felony under the federal CSA.”464 Since South Dakota views this felony as similar to “simple 

possession,” it cannot, according to the Court, be easily characterized 

as involving “illicit trafficking.”465 Therefore, although “Congress can 

define an aggravated felony of illicit trafficking in an unexpected way

. . . there are good reasons to think it was doing no such thing here.”466

Addressing specifically the statutory proviso that makes state offenses 

aggravated felonies, the Court said it had two purposes: “it provides 

that a generic description of ‘an offense . . . in this paragraph,’ one not 

specifically couched as a state offense or a federal one, covers either 

one, and it confirms that a state offense whose elements include the 

elements of a felony punishable under the CSA is an aggravated felony.”467

129 S. Ct. 1886 (2009) (holding aggravated identity theft requires knowledge that means of 

ID belonged to someone else).

461. 8 U.S.C. § 1101(a)(43)(B) (2006).

462. Lopez, 549 U.S. at 50.

463. 8 U.S.C. § 1101(a)(43) (2006) (proviso after § U).

464. Lopez, 549 U.S. at 53 (internal citations omitted).

465. See id. at 54.

466. Id. at 54–55.

467. Id. at 57.
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The Court went on to say that “if Lopez’s state crime actually fell 

within the general term ‘illicit trafficking,’ the state felony conviction 

would count as an ‘aggravated felony,’ regardless of the existence of a 

federal felony counterpart.”468 In his dissent, Justice Thomas argued:

Lopez’s state felony offense qualifies as a “drug trafficking 

crime” as defined in § 924(c)(2). A plain reading of this definition identifies two elements: First, the offense must be a felony; 

second, the offense must be capable of punishment under the 

Controlled Substances Act (CSA). No one disputes that South 

Dakota punishes Lopez’s crime as a felony. Likewise, no one disputes that the offense was capable of punishment under the CSA. 

Lopez’s possession offense therefore satisfies both elements, and 

the inquiry should end there.469

Following Lopez, the Tenth Circuit affirmed a finding that an alien 

was deportable as an aggravated felon. Gradiz v. Gonzales470 involved 

an alien who had been convicted under a Wyoming statute that made it 

illegal to “manufacture, deliver, or possess with intent to manufacture 

or deliver, a controlled substance.”471 The court concluded that “[a]ll 

three offenses chargeable under that statute—manufacture, delivery, 

and possession with intent to manufacture or deliver—are felonies under the Controlled Substances Act, and are therefore deportable aggravated felonies.”472 The description of the charge in the arraignment 

record provided a slight wrinkle because it described the charge as 

“Unlawful Manufacture or Delivery or Possession, or Possession With 

intent to Manufacture or Deliver, a Controlled Substance.”473 Since this 

charge included, as an alternative, the crime of simple possession, the 

court had to look beyond the charge to the defendant’s conduct as determined in the court’s papers. Since his plea agreement made it clear 

that he had actually distributed a controlled substance and not simply 

possessed it, the court concluded that he had been convicted of an 

“aggravated felony.”474

468. Id.

469. Id. at 61 (Thomas, J., dissenting) (internal citations omitted).

470. 490 F.3d 1206 (10th Cir. 2007).

471. Id. at 1210.

472. Id. (citations omitted).

473. Id.

474. Id. at 1211.
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A circuit split has occurred with respect to how to apply Lopez to a 

second state conviction of simple possession where the alien might be 

subject to a recidivism statute. “The First, Third, and Sixth Circuits 

have held (in cases applying the INA) that a second simple-possession 

offense cannot be treated as a recidivist felony under the Controlled 

Substances Act unless the offense was prosecuted as a recidivist offense 

under state law.”475 “By contrast, the Fifth and Seventh Circuits have 

held (in cases applying the Sentencing Guidelines) that a second simple-possession offense can be treated as a recidivist felony, since the 

conduct underlying the second possession could have been prosecuted 

as a recidivist felony under the CSA.”476 In applying the INA and the 

Sentencing Guidelines to the question of whether a second conviction 

for simple possession is an aggravated felony, the Second Circuit agrees

with the First, Third, and Sixth Circuits.477 Noting that it is not entitled 

to deference with respect to the interplay of state and federal criminal 

law, the BIA has issued two opinions that are consistent with the decisions in the First, Second, Third, and Sixth Circuits.

478

In Leocal v. Ashcroft,

479 the Court considered the meaning of 

“crime of violence”480 in the context of a conviction for driving under 

the influence. A “crime of violence” is “(a) an offense that has as an 

element the use, attempted use, or threatened use of physical force 

against the person or property of another, or (b) any other offense that 

is a felony and that, by its nature, involves a substantial risk that physi475. United States v. Ayon-Robles, 557 F.3d 110, 112 (2d Cir. 2009) (citing Berhe v.

Gonzales, 464 F.3d 74, 85–86 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130, 137–38 (3d 

Cir. 2001); Rashid v. Mukasey, 531 F.3d 438, 442–48 (6th Cir. 2008)). Note that Berhe is a 

pre-Lopez case.

476. Id. at 113 (citing United States v. Cepeda-Rios, 530 F.3d 333, 334–36 (5th Cir. 

2008) (per curiam); United States v. Pacheco-Diaz, 506 F.3d 545, 548–50 (7th Cir. 2007)). 

See also Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), cert. granted, 2009 U.S. 

LEXIS 9024 (Dec. 14, 2009) (No. 09-60).

477. See Ayon-Robles, 557 F.3d at 113 (applying Sentencing Guidelines); Alsol v. Mukasey, 548 F.3d 207, 219 (2d Cir. 2008) (applying INA).

478. In re Carachuri, 24 I. & N. Dec. 382, 385 (BIA 2007); In re Thomas, 24 I. & N. 

Dec. 416 (BIA 2007). But see Fernandez v. Mukasey, 544 F.3d 862, 868–69 (7th Cir. 2008) 

(rejecting BIA’s view in Carachuri).

479. 543 U.S. 1 (2004).

480. See 8 U.S.C. § 1101(a)(43)(F) (2006) (“a crime of violence (as defined in section 

16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year” is an aggravated felony).
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cal force against the person or property of another may be used in the 

course of committing the offense.”481

The petitioner, Leocal, had lived in the United States for twenty 

years—thirteen as a permanent resident alien—when “he was charged 

with two counts of DUI causing serious bodily injury under [a Florida 

statute], after he caused an accident resulting in injury to two people. 

He pleaded guilty to both counts and was sentenced to 21⁄2 years in 

prison.”482 Leocal was ordered removed from the country on the 

ground that he was an aggravated felon because his DUI was a crime of 

violence.483 The Court first noted that since the “crime of violence” 

provision focuses on the “offense,” it was required “to look to the elements and the nature of the offense of conviction, rather than to the 

particular facts relating to petitioner’s crime.”484

Several states, including Florida, had criminalized driving under 

the influence causing serious bodily injury, without specifying a mens 

rea, or requiring only negligence.485 “The question here is whether § 16 

can be interpreted to include such offenses.”486 In other words, does 

the word “use” in “use of force” connote more than the act of using 

force and more than mere negligence in using force? In concluding 

that Leocal’s conviction was not a crime of violence under § 16(a), the 

Court reasoned:

While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. 

Thus, a person would “use . . . physical force against” another 

when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and 

falling into him. When interpreting a statute, we must give 

words their “ordinary or natural” meaning.487

481. 18 U.S.C. § 16 (2006).

482. Leocal, 543 U.S. at 4.

483. Id. at 5.

484. Id. at 7.

485. See id. at 8.

486. Id.

487. Id. at 9.
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In concluding that a DUI conviction under the Florida statute was not 

a crime of violence under § 16(b), the Court said:

§ 16(b) does not thereby encompass all negligent misconduct, 

such as the negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the 

risk that physical force might be used against another in committing an offense. The reckless disregard in § 16 relates not to 

the general conduct or to the possibility that harm will result 

from a person’s conduct, but to the risk that the use of physical 

force against another might be required in committing a 

crime.488

Following Leocal, the Ninth Circuit concluded that gross vehicular 

manslaughter while intoxicated was not a crime of violence (and therefore not an aggravated felony) because the statute employed a negligence—albeit gross negligence—standard.489

As seen from the above mentioned cases, the determination of 

whether a particular conviction is for an aggravated felony will often 

turn on intricate statutory interpretation and the interplay between 

multiple statutes. In Kharana v. Gonzales,

490 for instance, the Ninth Circuit addressed the issue of whether someone can be guilty of an offense 

that “involves fraud or deceit in which the loss to the victim . . . exceeds $10,000”491 if the offender makes full restitution. Since “loss to 

the victim” is not defined by the INA, the petitioner argued that reference should be made to the Sentencing Guideline formula for theft 

offenses, which gauges the sentence by the amount of the loss but does 

not count as loss moneys returned prior to the detection of the 

crime.

492 Setting aside the question of whether the Sentencing Guideline formula ought to be applied to the immigration context, the court 

concluded that the petitioner could not benefit from the payback provisions because she made restitution only after the detection of her 

488. Id. at 10 (“The classic example is burglary. A burglary would be covered under 

§ 16(b) not because the offense can be committed in a generally reckless way or because 

someone may be injured, but because burglary, by its nature, involves a substantial risk 

that the burglar will use force against a victim in completing the crime.”).

489. Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005).

490. 487 F.3d 1280 (9th Cir. 2007).

491. INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (2006).

492. Kharana, 487 F.3d at 1284.
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crime.493 Interpreting the same statute, the Tenth Circuit said that it was 

the loss to victims ($24,000) and not the amount of the bad check 

($9,308) in an elaborate check-kiting scheme that was relevant in determining whether the $10,000 threshold had been met.494

In Chowdhury v. INS,

495 the Ninth Circuit examined a different 

monetary aggravated felony provision. Money laundering, “if the

amount of the funds exceeded $10,000,” is an aggravated felony.496 In 

Chowdhury, the petitioner pled guilty to laundering $1,310 and was ordered to pay restitution of $967,753.39. Subsequently, he was ordered 

removed as an aggravated felon because the amount of loss far exceeded the statutory amount.497 The issue before the court was 

“whether the phrase ‘amount of the funds’ refers to the amount of 

money that was laundered or the amount of loss suffered by the victims 

of the underlying criminal activity.”498 In concluding that the petitioner 

had not committed an aggravated felony, the court said: “The plain 

language of the statute is clear. The phrase ‘if the amount of the funds’

modifies the clause preceding it and, therefore, refers to the amount of 

money that was laundered. The statute does not mention the loss to the 

victim or the total proceeds of the criminal activity.”499

Pursuant to a modified categorical approach, the Ninth Circuit 

concluded that a person convicted in the State of Washington of the 

misdemeanor of communicating with a minor for immoral purposes 

had committed the aggravated felony of “sexual abuse of a minor” 

where it was clear from judicially noticeable documents that the criminal conduct fell within the BIA’s reasonable definition of “sexual abuse 

of a minor.”500 There is no need to look to federal standards under the 

“sexual abuse of a minor”; therefore a state conviction for statutory 

rape of a 17-year-old can be an aggravated felony.501 No contact is nec493. Id. at 1284–85.

494. Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. 2002).

495. 249 F.3d 970 (9th Cir. 2001).

496. INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D) (2006).

497. Chowdhury, 249 F.3d at 973 (internal citation omitted).

498. Id.

499. Id.

500. Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005).

501. See Afridi v. Gonzales, 442 F.3d 1212, 1216 (9th Cir. 2006) (“the term ‘aggravated 

felony’ is not limited to those crimes defined by federal law as sexual abuse of a minor for 

purposes of determining removability”).
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essary under the “sexual abuse” provision; attempted solicitation is

enough under some statutes.502

Other cases finding an aggravated felony include simple misdemeanor assault,503 unauthorized use of a vehicle,504 petit larceny,505

possession of stolen mail,506 theft of services,507 forgery,508 and criminal 

contempt of court.509 Cases finding that a conviction was not an aggravated felony include intentional assault in the third degree,510 credit 

card fraud,511 grand theft,512 and failure to appear.513

502. E.g., Taylor v. United States, 396 F.3d 1322, 1328–29 (11th Cir. 2005).

503. Compare Singh v. Gonzales, 432 F.3d 533, 539 (3d Cir. 2006) (aggravated felony as 

crime of violence where misdemeanor assault statute required specific intent), with Popal 

v. Gonzales, 416 F.3d 249, 254–55 (3d Cir. 2005) (no aggravated felony as crime of violence 

where misdemeanor assault statute only required recklessness).

504. Ramirez v. Ashcroft, 361 F. Supp. 2d 650, 656 (S.D. Tex. 2005).

505. Jaafar v. INS, 77 F. Supp. 2d 360, 365 (W.D.N.Y. 1999).

506. Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir. 2002).

507. Ilchuk v. Att’y Gen. of U.S., 434 F.3d 618, 622–23 (3d Cir. 2006).

508. Richards v. Ashcroft, 400 F.3d 125, 129–30 (2d Cir. 2005).

509. Alwan v. Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004).

510. Chrzanoski v. Ashcroft, 327 F.3d 188, 195 (2d Cir. 2003) (“under Connecticut 

law, it seems an individual could be convicted of intentional assault in the third degree 

for injury caused not by physical force, but by guile, deception, or even deliberate omission”).

511. Soliman v. Gonzales, 419 F.3d 276, 284–86 (4th Cir. 2005).

512. Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1354–55 (11th Cir. 2005).

513. Barnaby v. Reno, 142 F. Supp. 2d 277, 280 (D. Conn. 2001).
85

VIII. Relief from Deportation (and in Some 

Cases, Inadmissibility)

The Immigration and Nationality Act provides several types of relief 

for statutorily eligible deportable aliens. Some forms of available relief 

allow the alien to stay in the country while other forms ameliorate 

some of the harsher consequences of deportation. Absent exceptional 

circumstances, aliens who fail to appear at their removal hearings are 

barred from seeking relief for ten years after the order of removal.

514

Likewise, those who fail to comply with the terms of their voluntary 

departure are ineligible for relief for ten years.515 Aggravated felons and 

in some instances those being deported for other criminal offenses are 

ineligible for most relief.516 Similarly, terrorists and others being deported for national security reasons are ineligible for most relief.517

To obtain relief, the alien has the burden of proving that she is 

statutorily eligible and, in those cases where relief is discretionary, that 

she “merits a favorable exercise of discretion.”518 While the circuit 

courts have jurisdiction with respect to questions of law, including issues of statutory eligibility, it is important to emphasize that many 

forms of relief are ultimately discretionary, including cancellation, voluntary departure, and adjustment of status. Judicial review is generally 

unavailable for discretionary denials.519

The alien must corroborate credible testimony if required by the 

immigration judge unless the alien shows that he does not have and 

cannot reasonably obtain such evidence.520 And courts cannot reverse 

an immigration judge’s determination regarding “the availability of 

514. INA § 240(b)(7), 8 U.S.C. § 1229a(b)(7) (2006).

515. INA § 240B(d), 8 U.S.C. § 1229c(d) (2006).

516. See, e.g., INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (2006).

517. See, e.g., INA § 240A(c)(4), 8 U.S.C. § 1229b(c)(4) (2006). 

518. INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A) (2006).

519. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B) (2006). See, e.g., Hassan v. Chertoff, 

543 F.3d 564, 566 (9th Cir. 2008) (district court lacked jurisdiction to review agency’s discretionary decision); Barco-Sandoval v. Gonzales, 516 F.3d 35, 42 (2d Cir. 2008) (court 

lacks jurisdiction to review “mere quarrel over the correctness of the factual findings or 

the justification for discretionary choices made by the agency”) (internal quotations 

omitted); De La Vega v. Gonzales, 436 F.3d 141 (2d Cir. 2006) (same).

520. INA § 240(c)(4)(B), 8 U.S.C. § 1229a(c)(4)(B) (2006).
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corroborating evidence” unless the court concludes “that a reasonable 

trier of fact is compelled to conclude that such corroborating evidence 

is unavailable.”521 According to one court, “[a]ll that this means is that 

an immigration judge’s determination that if there were evidence to 

corroborate the alien’s testimony the alien could and should have presented it is entitled to reasonable deference. The precondition to deference is that the immigration judge explain (unless it is obvious) why 

he thinks corroborating evidence, if it existed, would have been available to the alien.”522 Where an immigration judge confronts “an inherently implausible story” and the alien contradicts himself, the court 

found that a reasonable adjudicator would not be compelled to disagree with the immigration judge.523

A. Cancellation of Removal Part A

Cancellation of Removal Part A, under § 240A of the INA, provides

permanent relief from deportation and continuing permanent residence for certain qualifying, long-term, permanent resident aliens.

524

To be eligible for Cancellation of Removal Part A, an alien must have 

been a permanent resident for at least five years and have resided in 

the United States “continuously for 7 years after having been admitted 

in any status.”525 An alien who received permanent residence by fraud 

or mistake has not been “lawfully admitted for permanent residence” 

for purposes of eligibility for the now repealed § 212(c) relief 526 and 

521. INA § 242(b)(4), 8 U.S.C. § 1252(b)(4) (2006).

522. Hor v. Gonzales, 421 F.3d 497, 500–01 (7th Cir. 2005).

523. Zheng v. Gonzales, 417 F.3d 379, 383 (3d Cir. 2005).

524. In 1996, Congress replaced an older form of relief from deportation with Cancellation of Removal Part A. Cancellation of Removal Part A’s predecessor, known as 

§ 212(c) relief, is still a viable option in a dwindling number of cases. To explore the differences between the statutes, see Elwin Griffith, The Road Between the Section 212(c) Waiver 

and Cancellation of Removal Under Section 240A of the Immigration and Nationality Act—

The Impact of the 1996 Reform Legislation, 12 Geo. Immigr. L.J. 65 (1997).

525. See INA § 240A(a), 8 U.S.C. § 1229b(a) (2006).

526. E.g., Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005) (“ArellanoGarcia may have received the adjustment through lawful procedure, and thus he reaped 

the benefits of permanent residence status until the mistake was discovered, but we defer 

to the BIA’s reasoned statutory interpretation and conclusion that he never ‘lawfully’ 

acquired the status through that mistake. We will not ‘deem’ him to be a ‘lawfully admit-
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presumably would not have been “lawfully admitted for permanent 

residence” for purposes of eligibility for Cancellation of Removal 

Part A. Continuous residence ends, for eligibility purposes, at the earlier of either (1) service of notice to appear and face removal charges 

or (2) the commission of a crime that makes the alien inadmissible or 

deportable.527

In addition to statutory eligibility, an alien seeking Cancellation of 

Removal Part A must also warrant a favorable exercise of discretion by 

the immigration judge. In In re C-V-T-,

528 the Board of Immigration 

Appeals discussed the standards by which discretion will be exercised. 

The Board said that the immigration judge

“must balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his [or her] behalf to determine 

whether the granting of . . . relief appears in the best interest of 

this country.” . . . [F]avorable considerations include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this 

country’s armed forces, a history of employment, and existence 

of property or business ties, evidence of value and service to the 

community, proof of genuine rehabilitation if a criminal record 

exists, and other evidence attesting to a respondent’s good character. Among the factors deemed adverse to an alien are the nature and underlying circumstances of the grounds of exclusion 

or deportation (now removal) that are at issue, the presence of 

additional significant violations of this country’s immigration

laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent’s bad character or undesirability as a 

permanent resident of this country.529

Some aliens, particularly those who are deportable based on plea 

agreements or convictions predating April 24, 1996, may be entitled to 

ted permanent resident’ when he obtained permanent residence status through a mistake 

and was not otherwise eligible for the status adjustment.”).

527. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2006). 

528. 22 I. & N. Dec. 7 (BIA 1998).

529. Id. at 11 (quoting Matter of Marin, 16 I. & N. Dec. 581, 584–85 (BIA 1978)).
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apply for forms of relief that are no longer available, such as § 212(c) 

relief.

530

B. Cancellation of Removal Part B

Cancellation of Removal Part B provides permanent relief in the form 

of permanent residence for certain aliens, whether or not lawfully in 

the United States. To be eligible for Cancellation of Removal Part B, 

the inadmissible or deportable alien must have been “physically present in the United States for a continuous period of not less than 10 

years immediately preceding the date” of application for relief, must 

have “been a person of good moral character during such period,” and 

must not have been convicted of crimes that would render an alien 

inadmissible or deportable.531 The alien must also establish “that removal would result in exceptional and extremely unusual hardship to 

the alien’s [citizen or permanent resident] spouse, parent, or child.”532

Additionally, the alien must warrant a favorable exercise of discretion. 

This remedy is available for permanent residents who do not meet the 

requirement of Cancellation of Removal Part A and for all other aliens, 

whether or not they were ever lawfully admitted into the United States. 

There are more relaxed rules for battered spouses and children.533

Continuous physical presence ends, for eligibility purposes, at the 

earlier of either (1) service of notice to appear and face removal 

charges or (2) the commission of a crime that makes the alien inadmissible or deportable.534 Absence from the United States for a single period of more than 90 days or an aggregate period of more than 180 

days will break the period of continuous physical presence.535

Several cases have addressed the ten-year requirement. In Lagandaon v. Ashcroft,

536 the Ninth Circuit determined that the statute’s plain 

meaning indicated that someone who was physically present from May 

530. See INS v. St. Cyr, 533 U.S. 289 (2001). For a more detailed look at questions of 

retroactivity and the continued availability of § 212(c) relief, see Ira Kurzban, Immigration 

Law Sourcebook 806–15 (10th ed. 2006).

531. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1) (2006).

532. INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C) (2006).

533. INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2) (2006).

534. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2006). 

535. INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2) (2006).

536. 383 F.3d 983 (9th Cir. 2004).
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14, 1987, until receipt of a notice to appear on May 13, 1997, had been 

physically present for the requisite ten-year period “immediately preceding the date” of application for cancellation of removal.537 In Santana-Albarran v. Ashcroft,

538 the Sixth Circuit concluded that an alien’s 

tax returns that were prepared several years late, and that were not 

supported by W-2s or proof of employment, were insufficient to corroborate the alien’s testimony as to the length of physical presence.539

In Lopez-Alvarado v. Ashcroft,

540 however, the Ninth Circuit held that, 

in the absence of an adverse credibility finding, there was no need for 

further documentary evidence to support the ten-year physical presence claim of a woman who had not worked outside the home.541

The Act provides a list of traits, which, if possessed by a person 

during the relevant time frame, make a person statutorily ineligible for 

a finding of good moral character. Habitual drunks, gamblers, those 

who have engaged in acts that would make them inadmissible on certain grounds, those who have served an aggregate of 180 days or more

in prison, and those who have perjured themselves to obtain immigration benefits cannot, under the statute, be regarded as persons of good 

moral character.542

Applying Chevron deference, the Eighth Circuit upheld an immigration judge’s finding that a single act of soliciting a prostitute rendered an alien statutorily ineligible for an affirmative finding of good 

moral character.543 With respect to false testimony, issuing false statements under oath to any immigration official makes one ineligible for 

an affirmative finding of good moral character.544 The statements need 

537. Id. at 988.

538. 393 F.3d 699 (6th Cir. 2005).

539. Id. at 706–07 (applying substantial evidence standard).

540. 381 F.3d 847 (9th Cir. 2004).

541. Id. at 854.

542. INA § 101(f), 8 U.S.C. § 1101(f) (2006) (anyone who has ever been convicted of 

an aggravated felony is also ineligible for a favorable finding of good moral character).

543. Amador-Palomares v. Ashcroft, 382 F.3d 864, 867–68 (8th Cir. 2004). But see

Mirabal-Balon v. Esperdy, 188 F. Supp. 317 (S.D.N.Y. 1960) (single act of solicitation does 

not support finding of deportability).

544. In re R-S-J-, 22 I. & N. Dec. 863, 864 (BIA 1999) (false statements to asylum officer).
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not be material.545 To be considered “false testimony,” however, the 

statements must be oral.546 While an adverse finding with respect to 

credibility does not prove that testimony was false,547 inconsistent and 

contradictory statements can provide the basis for upholding the immigration judge’s finding of false testimony.548

The statutory list of traits is not exhaustive. An immigration judge 

has discretion to make an adverse finding regarding good moral character.549 Past conduct, including expunged convictions, may be considered in determining an applicant’s good moral character.550 Likewise, 

pending criminal charges may be considered despite the fact that the

alien may later be acquitted.551 It is reversible error, however, for the 

immigration judge to focus solely on negative factors and not consider 

positive factors when exercising discretion.552

Several cases have addressed the criminal bar to Cancellation of 

Removal Part B, which makes an alien ineligible for this relief if he has 

been convicted of an offense that makes him inadmissible or deportable.553 In Gonzalez-Gonzalez v. Ashcroft,

554 the Ninth Circuit reviewed 

the denial of cancellation of removal for an alien who had been living 

in the United States for more than ten years without being inspected or 

admitted. The alien conceded his removability on the ground that he 

was inadmissible and applied for Cancellation of Removal Part B. The 

immigration judge found the alien ineligible for this relief because the 

alien had been convicted of “assault in the fourth degree/domestic violence.”555 The BIA affirmed. On appeal, the alien argued that since this 

was a deportable offense with no corresponding ground for inadmissi545. Opere v. INS, 267 F.3d 10 (1st Cir. 2001) (following the denaturalization case of 

Kungys v. United States, 485 U.S. 759 (1988)).

546. Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir. 2000) (a false written statement is not false testimony under § 1101(f)).

547. Rodriguez-Gutierrez v. INS, 59 F.3d 504, 507–08 (5th Cir. 1995).

548. Akinwande v. Ashcroft, 380 F.3d 517, 523 (1st Cir. 2004).

549. See id.

550. Ikenokwalu-White v. INS, 316 F.3d 798, 804 (8th Cir. 2003).

551. Accord Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir. 1985) (reviewing discretionary denial of voluntary departure).

552. Torres-Guzman v. INS, 804 F.2d 531, 533 (9th Cir. 1986).

553. INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C) (2006).

554. 390 F.3d 649 (9th Cir. 2004).

555. Id. at 650.
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bility, it did not apply to him since he was an inadmissible rather than 

deportable alien. The Ninth Circuit disagreed, concluding that the 

statute plainly means that anyone, whether inadmissible or deportable, 

is ineligible for Cancellation of Removal Part B if he has been convicted of a crime that is either a grounds for inadmissibility or deportability.556

An alien who has been physically present for ten years, is found to 

be of good moral character, and has no criminal conviction still must 

show that “removal would result in exceptional and extremely unusual 

hardship to the alien’s [citizen or lawful permanent resident] spouse, 

parent, or child.”557 “[T]o establish exceptional and extremely unusual 

hardship under section 240A(b) of the Act, an alien must demonstrate 

that his or her spouse, parent, or child would suffer hardship that is 

substantially beyond that which would ordinarily be expected to result 

from the person’s departure. [H]owever . . . the alien need not show 

that such hardship would be ‘unconscionable.’”558 A single mother of 

six children, including four citizen children who had never been to 

Mexico, met the standard where she had no family in Mexico, her 

permanent resident mother helped with her children, her sibling lived 

legally in the United States, and she ran her own business in the United 

States.559

Following the Act’s definition of “child,”560 the Ninth Circuit concluded that hardship to a daughter over the age of twenty-one years 

would not qualify the father for relief.561 Hardship to nonrelatives, including a girlfriend’s son, was not statutorily relevant.562 And although 

hardship to the applicant is not directly relevant, “factors that relate 

only to the [applicant] may also be considered to the extent that they 

affect the potential level of hardship to her qualifying relatives.”563

556. Id. at 652–53.

557. INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D) (2006).

558. In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002).

559. Id. at 469–71.

560. INA § 101(b), 8 U.S.C. § 1101(b)(1) (2006).

561. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144–45 (9th Cir. 2002).

562. Angamarca v. Gonzales, 415 F.3d 897, 901 n.2 (8th Cir. 2005).

563. Gonzalez Recinas, 23 I. & N. Dec. at 471.
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C. Section 212(c): Waiver of Inadmissibility (and Potentially 

Deportability)

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA)

limited,

564 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) eliminated, § 212(c) of the INA, replacing this 

ground for relief from deportation with Cancellation of Removal Part 

A.565 Although more than a dozen years have passed since its repeal, 

§ 212(c) continues to present complex questions in litigation as aliens 

with pre-IIRIRA convictions continue to seek relief pursuant to this 

provision.

566 Section 212(c) waivers are generally sought by lawful permanent residents (LPRs) who were convicted of crimes many years 

ago, who depart the United States, and who are stopped upon reentry. 

Because the system for readmitting LPRs does not seem to be consistent at our nation’s borders, an LPR may depart and return to the 

United States several times before being stopped and placed in removal 

proceedings. Section 212(c) is also of continued importance because it 

provides broader relief than cancellation of removal—an alien may be 

eligible under § 212(c) relief for convictions that were recategorized as 

aggravated felonies under IIRIRA and for which cancellation of removal is consequently not available.

Section 212(c) provided that “aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not 

564. “Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 

‘AEDPA’, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277, which took effect on April 

24, 1996, eliminated eligibility for section 212(c) relief for aliens convicted of specified 

crimes.” Garcia-Padron v. Holder, 558 F.3d 196, 200 (2d Cir. 2009).

565. “IIRIRA, enacted on September 30, 1996, and effective on April 1, 1997, repealed section 212(c) altogether. See IIRIRA § 304(b), 110 Stat. at 3009–597. IIRIRA replaced section 212(c) relief with the more restrictive procedure for cancellation of removal under INA section 240A, codified at 8 U.S.C. § 1229b(a).” Garcia-Padron, 558 F.3d 

at 200. See supra Part VIII.A.

566. See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (“§ 212(c) relief remains available for 

aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their 

plea under the law then in effect”). Cf. Nadal-Ginard v. Holder, 558 F.3d 61, 70 (1st Cir. 

2009) (St. Cyr rule unavailable for aliens convicted pre-1996 after trial because such aliens 

did not rely on § 212(c) eligibility in deciding to go to trial rather than enter a plea bargain).
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under order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the 

discretion of the Attorney General without regard to” many of the 

grounds for exclusion (now known as inadmissibility). Through a series of BIA and judicial opinions, this provision was extended to apply 

to deportable as well as excludable aliens.567 In the courts, Francis v. 

INS568 led the way in extending § 212(c) relief to deportable aliens. In 

Blake v. Carbone,

569 the Second Circuit revisited Francis and reaffirmed 

its reasoning. In framing the question, the court said: “At issue is a judicial amendment to an unconstitutional statute now repealed.”570

The petitioner in Francis never left the United States after he 

committed a narcotics offense (his ground for deportation). He 

argued the guarantee of equal protection implicit in the Due 

Process Clause of the Fifth Amendment would be violated if a 

§ 212(c) waiver was available to lawful permanent residents 

who departed and returned to the United States yet unavailable 

to those who never left the country when the two classes of persons were identical in every other respect. We were convinced. 

Congress was discriminating between lawful permanent residents who had traveled abroad temporarily and those who had 

not—a classification requiring a rational justification. Finding 

no justification, we concluded that “an alien whose ties with this 

country are so strong that he has never departed after his initial 

entry should receive at least as much consideration as an individual who may leave and return from time to time.” Rather than 

resolve the constitutional dilemma by striking the statute, we 

extended its reach. A § 212(c) waiver would be available to deportable lawful permanent residents who differed from excludable lawful permanent residents only in terms of a recent departure from the country.571

In a more recent case, Abebe v. Mukasey,

572 the Ninth Circuit rejected Francis’s equal protection rationale. The court found a rational 

567. For a history of § 212(c)’s evolution, see Koussan v. Holder, 556 F.3d 403 (6th Cir. 

2009).

568. 532 F.2d 268 (2d Cir. 1976).

569. 489 F.3d 88 (2d Cir. 2007).

570. Id. at 90.

571. Id. at 95 (internal citations omitted).

572. 554 F.3d 1203 (9th Cir. 2009) (per curiam).
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basis for treating returning LPRs more favorably than LPRs who had 

never left the country.

Congress could have limited section 212(c) relief to aliens 

seeking to enter the country from abroad in order to create an 

incentive for deportable aliens to leave the country. A deportable 

alien who wishes to obtain section 212(c) relief will know that 

he can’t obtain such relief so long as he remains in the United 

States; if he departs the United States, however, he could become 

eligible for such relief. By encouraging such self-deportation, 

the government could save resources it would otherwise devote 

to arresting and deporting these aliens.573

An alien is ineligible for § 212(c) relief, however, if the deportation 

ground upon which removal of the alien is sought has no counterpart 

in the grounds for inadmissibility.574 Much of § 212(c) litigation involves this question of whether a particular deportation provision has a 

comparable inadmissibility or excludability ground. On this question, 

the Second Circuit disagrees with other circuits on the method of determining whether a counterpart exists. 

The Sixth Circuit said:

The BIA made clear in Matter of Jimenez-Santillano that it is not 

the specific conduct of a petitioner that must correlate to a 

ground of exclusion. Rather, “[t]he essential analysis is to determine whether the deportation ground under which the alien 

has been adjudged deportable has a statutory counterpart among 

the exclusion grounds waivable by section 212(c).”

575

Following this standard, the court affirmed the BIA’s conclusion that 

deportation for violating 18 U.S.C. § 1546 relating to visa fraud had no 

counterpart in INA § 212(a)(6)(C), which makes an alien inadmissible

on the ground of fraud or misrepresentation, because the deportation 

573. Id. at 1206 (internal citations and quotations omitted).

574. 8 C.F.R. § 1212.3(f)(5) (2008) (“[t]he alien is deportable under former section 

241 of the Act or removable under section 237 of the Act on a ground which does not 

have a statutory counterpart in section 212 of the Act”). The Ninth Circuit said that its 

equal protection “ruling might cause the government to reconsider the regulation, and 

eventually repeal it as no longer necessary.” Abebe, 554 F.3d at 1207.

575. Koussan v. Holder, 556 F.3d 403, 410 (6th Cir. 2009) (quoting Matter of Jimenez-Santillano, 21 I. & N. Dec. 567, 574 (BIA 1996)).
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ground was much broader than the inadmissibility ground.

576 Rejecting 

an equal protection challenge, the court said:

The unambiguous language of section 212(c) clearly applies 

only to exclusion/readmission proceedings. In Francis, however, 

the Second Circuit stretched [§ 212(c)] beyond its language in 

response to equal protection concerns. Additional judicial redrafting would serve only to pull the statute further from its 

moorings in the legislative will.577

In contrast, the Second Circuit refused to defer to the BIA because 

“[a]ny difficulty in determining § 212(c)’s applicability to deportees 

arises not from the statutory language but from the BIA’s gloss on 

Francis.”578 Rather than examining potential similarities between the

statutory grounds for deportation and the statutory grounds for inadmissibility to determine whether a counterpart exists, the Second Circuit focuses on the offense committed by the deportable alien to determine if there is a ground upon which the alien might also be held inadmissible under INA § 212(a).

579 If there is, then the deportable alien 

is eligible for § 212(c) relief. “[P]etitioners’ eligibility for a § 212(c) 

waiver must turn on their particular criminal offenses. If the offense 

that renders a lawful permanent resident deportable would render a 

similarly situated lawful permanent resident excludable, the deportable 

lawful permanent resident is eligible for a waiver of deportation.”580

Deportations based on conviction of an aggravated felony present 

particular difficulties for two reasons: (1) because there is no corresponding aggravated felony inadmissibility ground; and (2) because the 

statute contains a laundry list of aggravated felonies, some of which 

might correspond to a statutory ground for inadmissibility. A deportable LPR might, for example, argue that his particular “aggravated felony” is similar to an inadmissible alien’s “crime involving moral turpitude,” thus making him eligible to apply for a § 212(c) waiver. “An ag576. “Such a conclusion makes intuitive sense, in light of the determination that it is 

not the petitioner’s actual activity resulting in an order of deportation that must find a 

section 212(a) counterpart, but rather the broader ground for deportation that must 

prove to be comparable to a waiver provision.” Koussan, 556 F.3d at 410.

577. Id. at 413 (internal quotations omitted).

578. Blake v. Carbone, 489 F.3d 88, 100 (2d Cir. 2007).

579. Id. at 101–03.

580. Id. at 103.
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gravated felony need not be a crime involving moral turpitude. A 

crime involving moral turpitude similarly need not be an aggravated 

felony.”581 Given its emphasis on the deportable offense and not the 

ground for deportation, the Second Circuit is more likely than other 

circuits that have addressed the issue to find correspondence between 

an “aggravated felony” deportation ground and a ground for inadmissibility.

In Blake v. Carbone, the Second Circuit remanded for the BIA to 

“consider whether Blake’s first degree sexual abuse of a minor conviction [an aggravated felony], Ho Yoon Chong’s racketeering conviction 

[an aggravated felony], Foster’s first degree manslaughter conviction 

[an aggravated felony], and Singh’s second degree murder conviction 

[an aggravated felony], could each form the basis of exclusion as a 

crime involving moral turpitude. If so, the merits of each petitioner’s 

§ 212(c) applications should be considered.”582

In Abebe, the Ninth Circuit addressed the issue of whether an alien 

deportable as an aggravated felon (in this case, “sexual abuse of a minor”) could seek § 212(c) relief because his offense corresponded to “a 

crime involving moral turpitude,” which is a ground of inadmissibility. 

“[A] deportable alien can be eligible for section 212(c) relief only if his 

grounds for deportation are substantially identical to a ground for inadmissibility. Here, petitioner is deportable for committing an ‘aggravated felony,’ which the panel held isn’t substantially identical to the 

most analogous ground for inadmissibility—committing a ‘crime involving moral turpitude.’”583

D. Other Forms of Permanent Relief

Several other provisions of the INA provide potential avenues for relief 

from deportation, allowing the alien to stay in the United States. An 

alien can affirmatively file for adjustment of status, for asylum, for 

withholding of removal, and for relief under the Convention Against 

581. Id. at 102.

582. Id. at 105.

583. Abebe v. Mukasey, 554 F.3d 1203, 1205 (9th Cir. 2009) (per curiam) (internal 

citations omitted). See also Vo v. Gonzales, 482 F.3d 363, 368–69 (5th Cir. 2007) (“crime of 

violence,” an aggravated felony, has no statutory counterpoint in grounds for inadmissibility); Caroleo v. Gonzales, 476 F.3d 158, 164–65 (3d Cir. 2007) (same).
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Torture (CAT) with the USCIS. If the relief sought is denied, and the 

alien is subsequently put in deportation proceedings, or if the alien 

first applies or becomes eligible for such relief after deportation proceedings have commenced, the IJ will determine, in the context of the 

deportation hearing, whether to grant the relief requested. Asylum, 

withholding, and the CAT are covered more extensively elsewhere in 

this monograph. If an alien applying for relief is ineligible because of a 

criminal conviction, the alien may be eligible for and seek an INA 

§ 212(h) waiver,584 which provides that certain criminal grounds of inadmissibility may be waived in the case of an alien seeking admission 

or adjustment of status. Under § 212(h), the Attorney General may, in 

his discretion, grant a waiver for crimes of moral turpitude (except 

murder and torture), multiple criminal convictions, prostitution, diplomatic immunity, and a single offense of simple possession of marijuana (thirty grams or less). At times, the courts of appeals review 

§ 212(h) issues.585

“Adjustment of status is a technical term describing a process 

whereby certain aliens physically present in the United States may obtain permanent resident status . . . without leaving the United States.”586

An alien who has been “inspected and admitted or paroled” into the 

United States can apply for adjustment if “(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him.”587

Certain activity, such as unauthorized employment, will make certain 

aliens ineligible for adjustment of status.588 Several issues related to adjustment of status come before the courts of appeals, including:

584. 8 U.S.C. § 1182(h) (2006).

585. See, e.g., Rotimi v. Holder, 577 F.3d 133, 138–39 (2d Cir. 2009) (applying Chevron

deference to BIA’s interpretation of the phrase “lawfully resided continuously”); Samuels 

v. Chertoff, 550 F.3d 252, 262 (2d Cir. 2008) (remand to BIA where BIA might have overlooked a regulatory factor in determining whether to grant waiver); Martinez v. Mukasey, 

519 F.3d 532, 541–42 (5th Cir. 2008) (interpreting meaning of “admission” for § 212(h) 

purposes).

586. Succar v. Ashcroft, 394 F.3d 8, 13 (1st Cir. 2005) (internal quotation marks omitted).

587. 8 U.S.C. § 1255(a) (2006).

588. Id. § 1255(c).
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whether a visa is immediately available;

589 whether an IJ has jurisdiction to adjudicate an arriving alien’s adjustment petition;

590 whether a 

properly filed adjustment application should be held in abeyance until 

a visa becomes available, where the visa had been immediately available at the time of the adjustment application;591 and whether to grant a 

continuance of the removal proceeding to allow the adjustment petition to be presented to the USCIS.592

An alien might also be eligible for relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA)593 or one of the 

amnesty programs from the 1980s, such as the one for Special Agricultural Workers (SAW).594 Registry is a form of relief that allows the alien 

to stay in the United States. A person may be registered as a permanent

resident if he is not inadmissible on certain enumerated grounds, entered the United States prior to January 1, 1972, has continuously been 

a resident since entry, is of good moral character, and is not ineligible 

for citizenship.595 The Ninth Circuit has held that, pursuant to the plain 

language of the statute, those for whom there is a record of lawful admission are ineligible for registry.596

589. See, e.g., Bolvito v. Mukasey, 527 F.3d 428, 435 (5th Cir. 2008) (“The central issue 

presented by this petition for review is whether the IJ erred as a matter of law when he 

determined that Bolvito’s priority date was January 3, 2002, rather than November 9, 

1981.”).

590. See, e.g., Brito v. Mukasey, 521 F.3d 160 (2d Cir. 2008).

591. See, e.g., Masih v. Mukasey, 536 F.3d 370, 375 (5th Cir. 2008) (relying on INS operations instruction and BIA precedent, the court answered yes).

592. See, e.g., Ceta v. Mukasey, 535 F.3d 639, 647 (7th Cir. 2008) (to deny continuance, 

the IJ “must provide a reason consistent with the adjustment statute”) (internal quotations omitted).

593. Pub. L. 105-100, 111 Stat. 2160, tit. II, div. A (Nov. 19, 1997), as amended by Pub. 

L. 105-139, 111 Stat. 2644 (Dec. 2, 1997). See, e.g., Ramos-Bonilla v. Mukasey, 543 F.3d 216, 

219 (5th Cir. 2008) (“failure to meet a regulatory deadline under NACARA is a failure to 

exhaust administrative remedies that strips this court of jurisdiction to review a BIA decision”).

594. 8 U.S.C. § 1160 (2006). See, e.g., Francis v. Gonzales, 442 F.3d 131, 145 (2d Cir. 

2006) (remanding to BIA to determine whether SAW status can be terminated and alien 

deported).

595. INA § 249, 8 U.S.C. § 1259 (2006).

596. Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1150 (9th Cir. 2002).
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E. Voluntary Departure

The INA contains two types of voluntary departure: before the conclusion of removal proceedings, and at the conclusion of removal proceedings. As one court explained,

[v]oluntary departure is a discretionary form of relief that allows an alien who is subject to a deportation order a period of 

time in which to leave the country of his own volition. If adhered 

to, voluntary departure produces a win-win situation. It benefits 

the government by expediting departures and eliminating the 

costs associated with deportation. It benefits the alien because it 

allows him to choose the destination to which he will travel and 

to avoid the penalties attendant to removal (thereby easing a 

possible return to the United States).597

Under the first form of voluntary departure, an alien may be given 

up to 120 days to depart from the United States at his own expense, “in 

lieu of being subject to” removal proceedings or “prior to the completion of such proceedings.”598 A bond may be required to ensure the 

alien’s departure.599

Under the second form, an immigration judge may grant voluntary 

departure at the end of removal proceedings, giving the alien up to 

sixty days to depart from the United States at his own expense. To 

qualify for voluntary departure at the conclusion of removal proceedings, the alien must have been physically present in the United States 

for the year preceding the notice to appear, have been a person of 

good moral character for the five years before the application for voluntary departure, and have the means to depart.600 Aggravated felons 

and those being removed on national security grounds are ineligible 

for this second type of voluntary departure.601 Bond shall be required 

to ensure departure.602

Eligibility for the first form of voluntary departure requires the 

alien to forego other potential avenues of relief and to waive any right 

597. Bocova v. Gonzales, 412 F.3d 257, 264–65 (1st Cir. 2005) (internal citation omitted).

598. INA § 240B(a), 8 U.S.C. § 1220b(a) (2006).

599. Id. at (a)(3).

600. Id. at (b)(1).

601. Id.

602. Id. at (b)(3).
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to appeal.

603 Otherwise, his application for voluntary departure will be 

judged by the more stringent standards for granting voluntary departure at the conclusion of a removal hearing.604 The Second Circuit has 

held that the requirement of an alien to waive appeal rights in order to 

receive voluntary departure prior to the commencement of the removal hearing does not violate due process.605

The First Circuit, among others, has concluded that a court has no 

power to resurrect or reinstate voluntary departure on appeal once the 

time for voluntary departure has lapsed.606 Interpreting the IIRIRA 

amendments, the court reasoned: “Reinstatement of a lapsed period of 

voluntary departure would be the functional equivalent of fashioning a 

new voluntary departure period, which would arrogate unto the court a 

power deliberately withheld by Congress and, in the bargain, contravene Congress’s clearly expressed intention.”607 The court did opine, 

however, that it had the authority to stay an unexpired grant of voluntary departure.608

The courts of appeals split three ways on the granting of motions to 

stay voluntary departure. The Sixth, Eighth, and Ninth Circuits have 

held that the filing of a motion to stay removal prior to the expiration 

of the voluntary departure period will be treated as a motion to stay 

voluntary departure.609 The First and Seventh Circuits require an express motion for stay of voluntary departure.610 The Fourth Circuit 

concluded that under IIRIRA it lacked jurisdiction to hear a motion to 

603. Hashish v. Gonzales, 442 F.3d 572, 579 (7th Cir. 2006).

604. Id.

605. Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d Cir. 2003).

606. E.g., Naeem v. Gonzales, 469 F.3d 33, 37 (1st Cir. 2006). See also Sviridov v. Ashcroft, 358 F.3d 722, 731 (10th Cir. 2004); Mullai v. Ashcroft, 385 F.3d 635, 639–40 (6th Cir. 

2004).

607. Naeem, 469 F.3d at 37.

608. Id. at 38.

609. Macotaj v. Gonzales, 424 F.3d 464, 467 (6th Cir. 2005); Desta v. Ashcroft, 365 

F.3d 741, 749 (9th Cir. 2004); Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004).

610. Bocova v. Gonzales, 412 F.3d 257 (1st Cir. 2005); Alimi v. Ashcroft, 391 F.3d 888 

(7th Cir. 2004). The Second and Third Circuits agree with the First, Sixth, Seventh, Eighth, 

and Ninth Circuits that they have jurisdiction and authority to stay voluntary departure; 

these circuits, however, did not address whether a motion to stay removal will be treated 

as a motion to stay voluntary departure. See Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 

2006); Obale v. Att’y Gen. of U.S., 453 F.3d 151 (3d Cir. 2006).
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stay voluntary departure.611 Whether and how these cases will be affected by the Supreme Court’s decision in Dada v. Mukasey612 remains 

to be seen.

In Dada, the Supreme Court held that an alien does not forego the 

right to file a motion to reopen by accepting voluntary departure. The 

Court said: “Nothing in the statutes or past usage with respect to voluntary departure or motions to reopen indicates they cannot coexist.”613

Given the BIA’s backlog,

[a]bsent tolling or some other remedial action by the Court, 

then, the alien who is granted voluntary departure but whose 

circumstances have changed in a manner cognizable by a motion 

to reopen is between Scylla and Charybdis: He or she can leave 

the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be 

deemed withdrawn. Alternatively, if the alien wishes to pursue 

reopening and remains in the United States to do so, he or she 

risks expiration of the statutory period and ineligibility for adjustment of status, the underlying relief sought.614

In reaching its conclusion, the Court was cognizant of the need to 

maintain the quid pro quo nature of voluntary departure.615 Therefore, 

“the alien has the option either to abide by the terms, and receive the 

agreed-upon benefits, of voluntary departure; or, alternatively, to forgo 

those benefits and remain in the United States to pursue an administrative motion.”616 Resolving a circuit split, the Court concluded, however, that the filing of a motion to reopen did not toll the period for 

voluntary departure.617

611. Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004).

612. 128 S. Ct. 2307 (2008).

613. Id. at 2316.

614. Id. at 2318 (citations omitted).

615. “If the alien is permitted to stay in the United States past the departure date to 

wait out the adjudication of the motion to reopen, he or she cannot then demand the 

full benefits of voluntary departure; for the benefit to the Government—a prompt and 

costless departure—would be lost. Furthermore, it would invite abuse by aliens who wish 

to stay in the country but whose cases are not likely to be reopened by immigration 

authorities.” Id. at 2319.

616. Id. at 2319–20.

617. Id. at 2319.
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IX. Removal Process

Deportation “is a practice that bristles with severities.”618 “It may deprive a [person] of all that makes life worth while.”619 “The impact of 

deportation upon the life of an alien is often as great if not greater than 

the imposition of a criminal sentence.”620 Despite the harsh consequences of deportation, the Supreme Court considers removal a civil—

not criminal—process.621 Because removal proceedings are civil, not 

criminal, the Sixth Amendment right to counsel does not apply. The 

immigrant may be represented by counsel, but at no expense to the 

government. While recognizing Congress’s right to determine the substantive provisions of the law of deportation pursuant to its plenary 

power over immigration issues,622 the Supreme Court has, for over a 

century, recognized that aliens in the United States, whether in the 

United States lawfully or not, are entitled to due process in removal 

proceedings.623 Subsequently, a court must resolve “any lingering ambiguities in deportation statutes in favor of the alien.”624

Dozens of recent cases have concluded that aliens were denied due 

process because of some deficiency in the removal process. For example, in Alexandrov v. Gonzales,

625 the Sixth Circuit concluded that a 

finding by the immigration judge that the alien’s asylum application 

was frivolous violated the alien’s due process rights where two unreliable hearsay memoranda from the U.S. embassy provided the basis for 

the determination.626 The Seventh Circuit held that, looking at the totality of the circumstances, an alien was denied due process because

618. Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952).

619. Id. at 600 (Douglas, J., dissenting).

620. Bridges v. Wixon, 326 U.S. 135, 164 (1945).

621. E.g., Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).

622. See supra text accompanying notes 138–42.

623. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993).

624. INS v. St. Cyr, 533 U.S. 289, 320 (2001) (quoting INS v. Cardoza-Fonseca, 480 

U.S. 421, 449 (1987)).

625. 442 F.3d 395 (6th Cir. 2006).

626. Id. at 407. Cf. Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 269 (2d Cir. 2006) (refusing to reach the constitutional due process question but arriving at the same conclusion 

by determining that the unreliable hearsay evidence did not provide substantial evidence 

to support the BIA’s finding against the alien).
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the alien clearly had not been afforded a “meaningful opportunity to 

be heard.” The alien’s qualified experts were not allowed to testify, and

the immigration judge continually interrupted the proceedings, almost 

taking on the role of the government’s attorney, thereby limiting the 

alien’s attorney’s ability to question witnesses and limiting the alien’s 

responses.627

In denying a due process claim based on ineffective assistance of 

counsel in pursuing asylum, the Eighth Circuit determined that the asylum applicant had no liberty or property interest in the asylum claim 

because it was a statutory benefit given at the discretion of the executive branch.

628 Although it had doubts, the court did assume, without 

deciding, that an alien has a due process right to effective assistance of 

counsel with respect to an application for withholding of removal since 

that remedy is mandatory, not discretionary, once statutory eligibility is 

established.629 To establish a claim of ineffective assistance of counsel, 

the Board of Immigration Appeals requires the complaining party to 

support the motion with an affidavit; to inform allegedly ineffective 

counsel, giving counsel an opportunity to respond; and, in the motion, 

to state that a bar complaint has been made, or, if not, the reasons for 

not filing a complaint.630 Additionally, the alien must show that ineffective assistance caused prejudice.631

The removal proceedings commence with a written notice to appear, which serves as a charging document. The written notice advises

the alien of the nature of the proceedings, the legal authority that forms 

the basis for the proceedings, factual allegations, the legal charges, notice that the alien must keep Homeland Security current on the alien’s 

address and phone number, notice of the time and place of the proceedings, and that the alien may obtain counsel at no cost to the gov627. E.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539–40 (7th Cir. 2005). But see

Apouviepseakoda v. Gonzales, 475 F.3d 881, 886 (7th Cir. 2007) (although “IJ’s conduct 

was hardly a model of patience and decorum,” no due process violation).

628. Obleshchenko v. Ashcroft, 392 F.3d 970, 971 (8th Cir. 2004). But see Mohammed 

v. Gonzales, 400 F.3d 785, 793–94 (9th Cir. 2005) (assumes right to effective counsel in 

adjudicating asylum claim).

629. Obleshchenko, 392 F.3d at 971–72.

630. Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).

631. E.g., Zheng v. Gonzales, 422 F.3d 98, 107 (3d Cir. 2005).
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105

ernment, along with a “list of counsel.”632 “The decision to issue such 

an order is a matter of prosecutorial discretion, essentially equivalent 

to the decision to initiate a criminal prosecution.”633

The government bears the burden of proving by clear and convincing evidence that the person targeted for removal is a noncitizen.634

The burden then shifts to the alien to prove by clear and convincing 

evidence his or her lawful presence in the United States.635 Finally, the 

government “has the burden of establishing by clear and convincing 

evidence that, in the case of an alien who has been admitted to the 

United States, the alien is deportable. No decision on deportability 

shall be valid unless it is based on reasonable, substantial, and probative evidence.”636 The statute provides a list of documents that “constitute proof of a criminal conviction.”637 The alien has the burden of

proving that he is statutorily eligible for relief from removal and, where 

required, that he warrants a “favorable exercise of discretion.”638

The Federal Rules of Evidence are not strictly applied at the removal hearing.639 Hearsay is admissible as long as it is “probative and 

its admission is fundamentally fair.”640 But “[a] single affidavit from a 

self-interested witness not subject to cross-examination simply does not 

rise to the level of clear, unequivocal, and convincing evidence re632. INA § 239(a)(1), 8 U.S.C. § 1229(a)(1) (2006).

633. Cervantes v. Perryman, 954 F. Supp. 1257, 1265 (N.D. Ill. 1997) (noncitizens 

could not force immigration authorities to institute deportation proceedings to enable 

noncitizens to apply for relief). Once the proceeding begins, it is error, however, not to 

grant continuance where the affected alien has a pending immigrant visa petition, which 

would allow him to adjust status. Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005). But 

see Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006) (not improper to deny continuance 

where adjustment application hopeless).

634. See, e.g., Murphy v. INS, 54 F.3d 605, 608–09 (9th Cir. 1995).

635. INA § 240(c)(2)(B), 8 U.S.C. § 1229a(c)(2)(B) & INA § 291, 8 U.S.C. § 1361 (2006) 

(in removal proceedings, alien has burden of showing time, place, and manner of entry 

into the United States).

636. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (2006).

637. INA § 240(c)(3)(B), 8 U.S.C. § 1229a(c)(3)(B) (2006).

638. INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A) (2006). For standards used to determine whether an alien warrants a favorable exercise of discretion, see supra text accompanying notes 518–19.

639. Matter of Wadud, 19 I. & N. Dec. 182, 188 (BIA 1984).

640. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003).
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quired to prove deportability.”641 In Hernandez-Guadarrama v. Ashcroft, Hernandez, a conditional permanent resident, sought review of a 

removal order, which was based on a finding that he was an alien 

smuggler. Hernandez’s truck was stopped in Idaho by INS agents “who 

were conducting anti-smuggling ‘traffic observations’” and became 

suspicious of Hernandez’s truck.642 One of the passengers, an alien who 

had been previously deported, gave a sworn statement. 

According to that statement, Hernandez and his wife picked up 

the seven individuals in their home town in Mexico and drove 

them to a town near the Mexico–United States border. They 

dropped the seven passengers off before they reached the border, 

at which point the passengers made arrangements with a smuggler to cross into the United States. The seven aliens each paid 

the smuggler $750, and after they crossed the border, the smuggler made arrangements for them to meet up with Hernandez in 

Phoenix, Arizona. From there, they expected to ride with [Hernandez] to Prosser, Washington.643

At the hearing, the immigration judge refused the Hernandezes’ request to cross-examine the arresting agents regarding the reasons for 

stopping Hernandez’s vehicle. The passenger’s affidavit was introduced 

into evidence, but she was not produced for cross-examination because the INS had already deported her.644 In determining that admission of the passenger’s sworn statement was fundamentally unfair, the 

court said: “[i]t is clear that ‘the burden of producing a government’s 

hearsay declarant that a petitioner may wish to cross-examine’ is on the 

government, not the petitioner. The government may not evade its obligation to produce its witness by taking affirmative steps, such as deportation, that render the witness unavailable. Indeed, the government’s burden is greater, not lesser, when it exercises custodial power 

over the witness in question.”645

Several cases have addressed the question of authentication admissibility and the weight given to documents. The regulations provide a 

641. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 683 (9th Cir. 2005).

642. Id. at 676.

643. Id.

644. Id. at 682.

645. Id. (internal quotations and citations omitted).
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method for authenticating domestic and foreign documents.646 Courts 

have routinely held that 8 C.F.R. § 287.6 is “not an absolute rule of exclusion, and is not the exclusive means of authenticating records before an immigration judge.”647 In Cao He Lin v. U.S. Department of Justice,

648 for example, the court concluded that the immigration judge 

“erred by rejecting the notarial birth certificate” simply because it had 

not been authenticated pursuant to “regulation.”649 The court did not, 

however, provide guidance as to an alternative method for authentication.

The courts of appeals split on how to determine whether there is 

substantial evidence to uphold a finding that an alien has been found 

deportable by clear and convincing evidence. In Francis v. Gonzales,

650

the Second Circuit said, “[a]s a preliminary matter, we must ascertain 

whether the substantial evidence test becomes more demanding as the 

government’s underlying burden of proof increases.”651 Following the 

Sixth and Ninth Circuits, the court concluded: “under the substantial 

evidence test, in order to grant a petition for review of an order of the 

BIA, we are not required to find that any rational trier of fact would be 

compelled to conclude that [alien was not deportable]. Rather, we 

must find that any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing 

evidence.”652 In contrast, the Eleventh Circuit, in Adefemi v. Ashcroft,

653

said “[w]e apply the substantial evidence test even when, as in this 

case, the government is required to prove its case by clear and convincing evidence in the administrative forum. In other words, the fact 

that the INS was required to prove [the alien’s] deportability by clear 

and convincing evidence in the BIA does not make our review of the 

BIA’s decision more stringent.”654

646. 8 C.F.R. § 287.6 (2006).

647. E.g., Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006).

648. 428 F.3d 391 (2d Cir. 2005).

649. Id. at 405.

650. 442 F.3d 131 (2d Cir. 2006). 

651. Id. at 138. 

652. Id. at 138–39.

653. 386 F.3d 1022 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005).

654. Id. at 1027 (footnotes omitted).
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The courts of appeals have grown increasingly impatient with the 

demeanor of immigration judges, even apart from issues of due process and substantial evidence. Noting a “disturbing pattern of IJ misconduct . . . notwithstanding the fact that some of our sister circuits

have repeatedly echoed our concerns,” a clearly frustrated Third Circuit said “[t]ime and time again, we have cautioned immigration judges 

against making intemperate or humiliating remarks during immigration 

proceedings. Three times this year we have had to admonish immigration judges who failed to treat the asylum applicants in their court with 

the appropriate respect and consideration.”655 The Third and Sixth 

Circuits have suggested that a different immigration judge be assigned 

the case on remand where it appeared from the immigration judge’s 

conduct at the original hearing that bias might be present.656

Congress has mandated that “no court shall enjoin the removal of 

any alien pursuant to a final order [of removal] unless the alien shows 

by clear and convincing evidence that the entry or execution of such 

order is prohibited as a matter of law.”657 This provision does not apply to judicial stays of removal, which continue to be governed by the 

traditional standards for determining whether to stay an order.658

655. Wang v. Att’y Gen. of U.S., 423 F.3d 260, 267–68 (3d Cir. 2005).

656. See, e.g., id. at 268; Elias v. Gonzales, 490 F.3d 444, 450 (6th Cir. 2007) (“While we 

have stated our concerns about the IJ’s credibility determination, we are especially troubled by the conduct of the IJ during the hearing and its effect on the petitioner’s ability 

to testify accurately. We cannot conclude that the IJ’s adverse credibility determination is 

supported by substantial evidence due to the IJ’s behavior during the hearing.”).

657. 8 U.S.C. § 1253(f)(2) (2006).

658. Nken v. Holder, 129 S. Ct. 1749, 1761 (2009). 
109

X. Asylum and Refugee Law, Withholding of 

Removal, and Convention Against Torture

At the end of 2007, the United Nations High Commissioner for Refugees (UNHCR) estimated that there were 21.5 million refugees and internally displaced persons in the world.659 A small portion of these are 

eligible for specific legal relief under international and domestic law. 

Refugee status, asylum, and withholding of removal (nonrefoulement) 

are designed to provide refuge from persecution. The Convention 

Against Torture (CAT) is designed to provide protection for those who 

are likely to face torture if they are forced to return home.

The definition of “refugee,” which continues to form the basis of 

U.S. asylum and withholding-of-removal law, originated in the 1951 

Convention Relating to the Status of Refugees, and includes any person 

who, “[a]s a result of the events occurring before January 1, 1951 and 

owing to a well-founded fear of being persecuted for reasons of race, 

religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, 

owing to such fear, is unwilling to avail himself of the protection of that

country.”660 Article 33 of the convention provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be 

threatened on account of his race, religion, nationality, membership in 

a particular social group or political opinion.”661 The convention allows contracting states to refuse relief to those who either pose a security threat to the country or who, because of conviction for “a particularly serious crime” pose “a danger to the community.”662 As a party to 

the 1967 Protocol Relating to the Status of Refugees663 (which also re659. See 2007 Global Trends: Refugees, Asylum-Seekers, Returnees, Internally Displaced and Stateless Persons (UNHCR June 17, 2008), available at http://www.unhcr.org/

statistics/STATISTICS/4852366f2.pdf. 

660. 1951 Convention Related to the Status of Refugees, Article 1(A)(2), 189 

U.N.T.S. 137, signed July 28, 1951, entered into force, Apr. 22, 1954.

661. Id. at Art. 33(1).

662. Id. at Art. 33(2).

663. Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, signed Jan. 31, 

1967, entered into force, Oct. 4, 1967.
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moved the convention’s 1951 time-bar), the United States is derivatively bound to the convention’s main substantive provision.

For the purposes of this monograph, INA §§ 101(a)(42), 208, and 

241(b)(3) are the most important statutory provisions addressing asylum and withholding of removal. Following the convention, the INA 

defines “refugee” to mean “any person who is outside any country of 

such person’s nationality . . . and who is unable or unwilling to avail 

himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, 

nationality, membership in a particular social group, or political opinion.”664 In response to China’s population control policy, those who 

have been forced, or who have a well-founded fear of being forced, “to 

abort a pregnancy or to undergo involuntary sterilization, or who 

[have] been persecuted for failure or refusal to undergo such a program, or for other resistance to a coercive population control program, 

shall be deemed to have been persecuted on account of political opinion.”665 Persons within the United States or arriving at our borders are 

eligible for asylum if they fit within the definition of “refugee.”666

An application for asylum is also treated as an application for 

withholding of removal, which is covered by INA § 241(b)(3).667 The 

receipt of asylum allows the recipient to stay in the United States and, 

after a year, apply for permanent resident status. Withholding of removal, on the other hand, does not put the recipient on the path to 

regularized status in the United States; it merely (albeit importantly) 

forbids the United States from removing him to the country of persecution. The proof required to establish statutory eligibility is lower for 

asylum than for withholding of removal, but the grant of asylum is discretionary.668 If the applicant establishes statutory eligibility for the 

664. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2006). Those applicants who have 

themselves been persecutors are ineligible for relief as a refugee or asylee. See id. The Supreme Court has remanded a case to the BIA for its determination of “whether coercion 

or duress is relevant in determining if an alien” is a persecutor. Negusie v. Holder, 129 S. 

Ct. 1159, 1164 (2009).

665. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2006).

666. INA § 208(b), 8 U.S.C. § 1158(b) (2006). INA § 207, 8 U.S.C. § 1157 (2006), addresses the admission of overseas refugees.

667. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) (2006). 

668. See Legal Standard of Proof, infra Part X.C.1.
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withholding of removal, the grant of such relief is mandatory. Therefore, asylum applicants would prefer to be granted asylum with its 

greater benefits, but will hedge their bets and attempt to establish eligibility for withholding of removal in case they are statutorily barred 

from seeking asylum or receive a negative exercise of discretion from 

the immigration judge.

Pursuant to its treaty obligation under the Convention Against Torture (CAT), the United States will not return a person to a country 

where the person is likely to be tortured. There are two types of CAT 

relief available: withholding and deferral of removal.669 “[I]f an alien 

has been convicted of a ‘particularly serious crime,’ and is ineligible 

for withholding of removal under the CAT, an IJ is required to grant 

deferral of removal if the alien can establish the likelihood of torture 

upon return.”670 The CAT defines torture as “any act by which severe 

pain or suffering, whether physical or mental, is intentionally inflicted 

on a person for such purposes as obtaining from him or a third person 

information or a confession, punishing him for an act he or a third 

person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on 

discrimination of any kind, when such pain or suffering is inflicted by 

or at the instigation of or with the consent or acquiescence of a public 

official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to 

lawful sanctions.”671 Federal regulations govern the implementation of 

the CAT.

672 Applications for relief pursuant to the CAT are filed on the 

same form as asylum applications and will normally only be considered if asylum and withholding of removal are unavailable. 

669. 8 C.F.R. § 1208.16(c) & (d) (2008).

670. E.g., Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008); Khouzam v. 

Att’y Gen., 549 F.3d 235 (3d Cir. 2008).

671. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. 

A/39/51 (1984). See also Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir. 2008) (“The lack of 

medical care and likely pain that Pierre will experience is an unfortunate but unintended 

consequence of the poor conditions in the Haitian prisons,” but an unintended consequence is not torture, which requires a specific intent).

672. See 8 C.F.R. §§ 208.16–208.18 & 208.30–208.31 (2008).
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A. Persecution

Neither the Convention Against Torture nor U.S. statutory law defines

the term “persecution.”

Some cases are easy, but a great many fall at the margin and present surprisingly difficult issues. When does application of a 

uniform national policy constitute persecution? When does 

prosecution under the criminal law become persecution? Can 

there be persecution without intent to harm? Does persecution 

imply action by state officials or does it apply to nongovernmental officials acting singly or in groups? To what extent do these 

questions turn ultimately on deciding whether another nation’s 

punishments are in some sense illegitimate? If so, how can adjudicators develop standards for judging?673

And what degree of harm must someone be threatened with to classify 

it as persecution?

The BIA and the courts of appeals have offered various definitions 

of the term “persecution.” The BIA has said that persecution is “a 

threat to the life or freedom of, or the infliction of suffering or harm 

upon, those who differ in a way regarded as offensive.”674 In the Third 

Circuit, persecution includes “threats to life, confinement, torture, and 

economic restrictions so severe that they constitute a threat to life or 

freedom . . . [P]ersecution refers only to severe conduct and does not 

encompass all treatment our society regards as unfair, unjust or even 

unlawful or unconstitutional.”675 The Fifth Circuit has defined persecution as “[t]he infliction or suffering of harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, 

religion, political opinion, etc.), in a manner condemned by civilized 

governments. The harm or suffering need not be physical, but may 

take other forms, such as the deliberate imposition of severe economic 

disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life.”676 The Seventh Circuit has defined 

persecution as “punishment or the infliction of harm for political, re673. David Martin et al., Forced Migration: Law and Policy 98 (2007).

674. Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985).

675. Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir. 2007) (internal citations 

and quotations omitted).

676. Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006).
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ligious, or other reasons that this country does not recognize as legitimate. Although the term ‘persecution’ includes actions less severe than 

threats to life or freedom, ‘actions must rise above the level of mere 

harassment to constitute persecution.’”677 It has provided a list of examples: “Actions that might constitute persecution include detention, 

arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings or torture, or threats of 

such action.”678 The Eighth Circuit has said that persecution is “the 

infliction of or threat of death, torture, or injury to one’s person or 

freedom.”679 But “[a]bsent physical harm, the incidents of harassment, 

unfulfilled threats of injury, and economic deprivation are not persecution.”680 The Ninth Circuit defines persecution as “‘the infliction of 

suffering or harm upon those who differ (in race, religion or political 

opinion) in a way regarded as offensive. . . . [P]ersecution is an extreme concept that does not include every sort of treatment our society 

regards as offensive. Discrimination on the basis of race or religion, as 

morally reprehensible as it may be, does not ordinarily amount to 

“persecution” within the meaning of the Act.’ However, discrimination 

can in ‘extraordinary cases, be so severe and pervasive as to constitute 

“persecution” within the meaning of the Act.’”681 In deciding whether 

an applicant for asylum has been persecuted or has a well-founded fear 

of persecution, the fact finder should aggregate various hardships likely 

to be suffered or hardships suffered at the hand of the oppressor and 

not look at each hardship in isolation.682

The courts of appeals have said that the following constitute persecution:

677. Bace v. Ashcroft, 352 F.3d 1133, 1137–38 (7th Cir. 2003) (internal citations and 

quotations omitted).

678. Koval v. Gonzales, 418 F.3d 798, 805 (7th Cir. 2005) (internal citations and quotations omitted).

679. Ngure v. Ashcroft, 367 F.3d 975, 990 (8th Cir. 2004).

680. Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir. 2007).

681. Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004) (internal citations omitted).

682. E.g., Zhang v. Gonzales, 408 F.3d 1239, 1249 (9th Cir. 2005).
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• “[D]eliberate imposition of substantial economic disadvantage” short of “total deprivation of livelihood” sufficient “to 

demonstrate economic persecution.”683

• “Denial of access to educational opportunities available to others on account of a protected ground can constitute persecution.”684

• Being threatened; beaten up; “deprived of food, water, a livelihood and the ability to leave [one’s] house” constitute persecution.685

• Single episode of detention and physical abuse was severe 

enough to constitute persecution where applicant was tied up 

during home invasion, slapped, kicked, had gun pointed to her 

head with death threat, and was threatened with rape even 

though physical harm was not severe.686

• “Rape or sexual assault may constitute . . . persecution.”687

The courts of appeals have held that adverse treatment did not 

amount to persecution in the following cases:

• Five-day detention accompanied by mistreatment that required 

several stitches did not constitute persecution.688

• Harassment and general economic difficulties do not amount 

to persecution.689

• Loss of job as a result of whistleblowing generally not persecution.690

• Watching father being assaulted and watching others being 

executed does not rise to level of persecution.691

• Denial of passport and other identity documents necessary “to 

the exercise of basic citizenship rights reflect discrimination, 

but do not rise to the level of persecution.”692

683. Koval v. Gonzales, 418 F.3d 798, 806 (7th Cir. 2005).

684. Zhang, 408 F.3d at 1247.

685. Ouda v. INS, 324 F.3d 445, 454 (6th Cir. 2003).

686. Nakibuka v. Gonzales, 421 F.3d 473, 476–77 (7th Cir. 2005).

687. Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1072 (9th Cir. 2004).

688. Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119–20 (3d Cir. 2007).

689. Ahmed v. Gonzales, 467 F.3d 669, 674 (7th Cir. 2006).

690. Musabelliu v. Gonzales, 442 F.3d 991, 994 (7th Cir. 2006) (“Asylum is not a form 

of unemployment compensation.”).

691. Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005).
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B. On Account of Race, Religion, Nationality, Membership 

in a Particular Social Group, or Political Opinion

Even if the asylum applicant’s treatment rises to the level of persecution, he must also demonstrate that the persecution was on account of 

one of the five enumerated grounds. In INS v. Elias-Zacarias,

693 the Supreme Court stated that “[t]he ordinary meaning of the phrase ‘persecution on account of . . . political opinion’ in § 101(a)(42) is persecution on account of the victim’s political opinion, not the persecutor’s.”694 To show that the persecution is “on account of” one of the 

five statutory factors and “[t]o establish the objective reasonableness of 

a well-founded fear of persecution, an applicant must prove that (1) he 

possesses a belief or characteristic a persecutor seeks to overcome by 

means of punishment of some sort; (2) the persecutor is already aware, 

or could become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and

(4) the persecutor has the inclination to punish the alien.”695 The victim does not have to actually possess one of the five characteristics as 

long as the persecutor imputes to the victim the relevant trait.696

The asylum applicant has the burden of proving a nexus between 

the persecution and one of the five relevant statutory characteristics. In 

Ruzi v. Gonzales,

697 the Eighth Circuit reviewed the denial of asylum 

and withholding of removal of a person who had fled Albania after being placed on the Democratic Party’s “extermination list” and beaten 

by officials of the Democratic Party so badly that he required nine days 

of hospitalization.698 Following the requirement of proving a nexus, the 

court said that “while Mehmet is not required to establish the exact 

motive for persecution, he must present credible evidence that the persecution was at least partly motivated by his political opinion, or another statutorily-protected ground.”699 The court affirmed the BIA’s 

692. Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005).

693. 502 U.S. 478 (1992).

694. Id. at 482.

695. See, e.g., Chen v. Gonzales, 470 F.3d 1131, 1135–36 (5th Cir. 2006).

696. E.g., Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007).

697. 441 F.3d 611 (8th Cir. 2006).

698. Id. at 613.

699. Id. at 615.
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denial of withholding of removal based on “[t]he BIA’s analysis of 

[the] evidence,” which “was that the Democrats’ motive for persecuting 

Mehmet was his non-cooperation during the referendum, not his political opinion.”700

By way of contrast, in De Brenner v. Ashcroft,

701 the Eighth Circuit

reversed a BIA decision that had denied asylum and concluded that the

applicants’ persecution had been based on their wealth and not one of 

the five relevant characteristics.702 The court rejected the BIA’s decision 

for two reasons. First,

The BIA itself, in its denial of the petitioners’ motion to reconsider, stated, “even though the Shining Path members may have 

believed that the respondent was affiliated with the thengoverning party in Peru, we believe that the impetus for her difficulties with the guerrillas was her alleged wealth, as we stated 

in our opinion.” This statement make[s] clear that the BIA in 

this instance improperly demanded that persecution occur solely

due to a protected basis. There is no such requirement in the 

statute and the BIA’s insertion of such a requirement is not the 

type of reasonable agency interpretation that demands our deference. Given the overwhelming evidence of an imputed political 

opinion in this case, and given the BIA’s apparent imposition of 

a single motive requirement, we do not find substantial evidence 

to support the BIA’s conclusion.

703

Second, the

decision is also based on the BIA’s failure to acknowledge the relationship between the Shining Path’s economic and political 

agendas. In this case, there is a strong argument that the Shining 

Path imputed certain political opinions to all wealthy Peruvians. 

Of course, we do not hold today that all threats or attacks upon 

wealthy individuals by radical communist insurgents amount to 

politically motivated persecution.704

700. Id.

701. 388 F.3d 629 (8th Cir. 2004).

702. Id. at 635.

703. Id. at 637 (internal citations omitted).

704. Id.
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But in such cases “it is an oversimplification to label the threats as simple extortion without carefully examining the record for particularized 

evidence of imputed political opinion.”705

Ordinarily prosecution is not considered persecution because residents of a country are usually expected to abide by that country’s laws 

of general applicability.706 “If, however, the alien shows the prosecution is based on a statutorily-protected ground, and if the punishment 

under that law is sufficiently extreme to constitute persecution, the law 

may provide the basis for asylum or withholding of removal even if the 

law is generally applicable.”707 In Scheerer v. United States Attorney General,

708 the asylum applicant, a German chemist, argued that his fourteen-month jail sentence for violating Germany’s racial hatred law constituted persecution. After studying soil samples from Auschwitz, he 

had published his result, including an inference that the Holocaust’s 

mass killings could not have occurred as history records them.709

Scheerer argued that his conviction was based on imputed political 

opinion, specifically that the German government ascribed an antiSemitic meaning to his scientific conclusions. He also argued that his 

sentence was “disproportionately severe.”710 The Eleventh Circuit held 

that substantial evidence supported the immigration judge’s denial of 

asylum. As to the first argument, the court concluded that

the administrative record is devoid of any evidence that the 

German government ascribed a political opinion to him and 

then punished him for that imputed belief. Rather, as the IJ held, 

the evidence only reflects that Scheerer was “held to account by a 

highly developed and sophisticated legal system, . . . received due 

process, was convicted, and sentenced to a term well below the 

statutorily established maximum.”711

705. Id.

706. See, e.g., Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1315 (11th Cir. 2006) (“Fear of 

prosecution under fairly administered laws, on the other hand, does not ordinarily entitle 

an alien to asylum or withholding of removal.”).

707. E.g., id. at 1316.

708. 445 F.3d 1311 (11th Cir. 2006).

709. Id. at 1314.

710. Id. at 1316.

711. Id.
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As to the second, the court found that Scheerer offered no evidence to support the claim.712

Where a law of general applicability is applied unevenly in a way 

that targets a particular group, such discrimination can rise to the level 

of persecution. In Miljkovic v. Ashcroft,

713 the asylum applicant claimed 

that the punishment meted out for not reporting to military duty pursuant to a draft notice would constitute persecution. “According to his 

uncontradicted testimony, draft notices were sent only to persons who 

were either opposed to the Milosevic regime or had been born in a 

part of Yugoslavia other than Serbia; Miljkovic satisfied both criteria.”714 The Seventh Circuit held that “picking on an ethnic minority 

for hazardous military duty goes well beyond mere ‘discrimination,’” 

such that it can constitute persecution.715

In extreme situations, punishment for actively resisting a regime 

can constitute persecution on account of political opinion. Matter of 

Izatula716 involved an Afghani male who was wanted by the Sovietcontrolled government of Afghanistan for aiding the mujahedin who 

were attempting to overthrow the government. The immigration judge 

denied the asylum application on the ground that the government simply sought to prosecute Izatula for his acts of aiding those who would 

overthrow the government.717 In reversing the immigration judge, the 

BIA said:

we find no basis in the record to conclude, as the immigration 

judge did, that any punishment which the Afghan Government 

might impose on the applicant on account of his support for the 

mujahedin would be an example of a legitimate and internationally recognized government taking action to defend itself from 

an armed rebellion. The Country Reports explain that in Afghanistan, “[c]itizens have neither the right nor the ability 

peacefully to change their government. Afghanistan is a totalitarian state under the control of the [People’s Democratic Party 

of Afghanistan], which is kept in power by the Soviet Union.” 

712. Id.

713. 376 F.3d 754 (7th Cir. 2004).

714. Id. at 755.

715. Id. at 756.

716. 20 I. & N. Dec. 149 (BIA 1990).

717. Id. at 152.
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We accordingly find the existing political situation in Afghanistan to be different from that of countries where citizens have an 

opportunity to seek change in the political structure of the government via peaceful processes.718

1. Particular Social Group

The vague and elastic phrase “membership in a particular social 

group” has given rise to much litigation, with the determination of 

what kind of group qualifies left to be decided on a case-by-case basis.

The BIA used the doctrine of ejusdem generis (“of the same kind”) to 

construe the meaning of “membership in a particular social group.”719

Since the four other grounds for asylum—persecution on account of 

race, religion, nationality, and political opinion—each involve an immutable characteristic defined as “a characteristic that either is beyond 

the power of an individual to change or is so fundamental to individual 

identity or conscience that it ought not be required to be changed,” the 

BIA concluded that “social group” refers to “a group of persons all of 

whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in 

some circumstances it might be a shared past experience such as former military leadership or land ownership.”720

718. Id. at 153–54 (internal citation omitted) (citing Dwomoh v. Sava, 696 F. Supp. 

970, 979 (S.D.N.Y. 1988), which held “general rule [that] prosecution for an attempt to 

overthrow a lawfully constituted government does not constitute persecution . . . [is not] 

applicable in countries where a coup is the only means through which a change in the 

political regime can be effected”).

719. Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985) (“That doctrine holds that 

general words used in an enumeration with specific words should be construed in a manner consistent with the specific words.”).

720. Id. at 233–34 (“[W]hatever the common characteristic that defines the group, it 

must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. 

. . . By construing ‘persecution on account of membership in a particular social group’ in 

this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to 

avoid persecution.”).
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The Ninth Circuit took a different approach in Sanchez-Trujillo v. 

INS:

721

The statutory words “particular” and “social” which modify 

“group,” indicate that the term does not encompass every 

broadly defined segment of a population, even if a certain demographic division does have some statistical relevance. Instead, 

the phrase “particular social group” implies a collection of people closely affiliated with each other, who are actuated by some 

common impulse or interest. Of central concern is the existence 

of a voluntary associational relationship among the purported 

members, which imparts some common characteristic that is 

fundamental to their identity as a member of that discrete social 

group.722

Pursuant to this definition, immediate families are a consummate example of a “particular social group” and “the class of young, working 

class, urban males of military age” is not because it is not a “cohesive, 

homogeneous group.”723

Recognizing its variance from the standard in Matter of Acosta,

724

the Ninth Circuit, in an attempt to harmonize its approach with the 

BIA’s, modified its approach in Hernandez-Montiel v. INS.

725 In that 

case, the court said: “[A] ‘particular social group’ is one united by a 

voluntary association, including a former association, or by an innate 

characteristic that is so fundamental to the identities or consciences of 

its members that members either cannot or should not be required to 

change it.”726

The Board of Immigration Appeals’ approach to defining “particular social group” has been followed in the First,727 Second,728 Third,729

721. 801 F.2d 1571 (9th Cir. 1986).

722. Id. at 1576.

723. Id. at 1576–77.

724. 19 I. & N. Dec. 211 (BIA 1985). See also supra notes 674 & 719–20 and accompanying text.

725. 225 F.3d 1084 (9th Cir. 2000).

726. Id. at 1093.

727. Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005) (applying, at least to some extent, 

Chevron deference).

728. Koudriachova v. Gonzales, 490 F.3d 255 (2d Cir. 2007) (applying Chevron deference).

729. Fatin v. INS, 12 F.3d 1233, 1239–40 (3d Cir. 1993) (applying Chevron deference).
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Sixth,730 Seventh,731 Tenth,732 and Eleventh Circuits.733 Without comment, the Fifth Circuit has cited Acosta for the meaning of “particular 

social group.”734 The Eighth Circuit appears to have a test similar to the 

Ninth Circuit’s test in Hernandez-Montiel.

735

In an ongoing dialogue with the courts of appeals, the BIA continues to refine the meaning of “particular social group.” Continuing to 

affirm Acosta, the BIA holds “that membership in a purported social 

group requires that the group have particular and well-defined 

boundaries, and that it possess a recognized level of social visibility.”736

“The essence of the ‘particularity’ requirement . . . is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as 

a discrete class of persons. . . . [T]he key question is whether the proposed description is sufficiently ‘particular,’ or is ‘too amorphous.’”737

The “social visibility” question “must be considered in the context of 

the country of concern and the persecution feared.”738 Using this refinement of Acosta, the BIA has determined that “Salvadoran youth 

who refused recruitment into the MS-13 criminal gang,”739 affluent 

Guatemalans,740 and “former noncriminal government informants 

working against the Cali drug cartel”741 do not constitute particular social groups for asylum purposes.

730. Castellano-Chacon v. INS, 341 F.3d 533, 546–47 (6th Cir. 2003) (applying Chevron deference).

731. Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998) (adopting Acosta standard and 

recognizing Chevron deference).

732. Niang v. Gonzales, 422 F.3d 1187, 1198–99 (10th Cir. 2005) (applying Chevron

deference).

733. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196–97 (11th Cir. 2006) (granting deference to BIA).

734. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352–53 (5th Cir. 2002).

735. See Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994), superseded by statute on other 

grounds recognized by Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir. 2004).

736. Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (BIA 2008), reopened by BIA order 

dated July 28, 2009 (order on file with author). 

737. Id. at 584.

738. Id. at 586–87.

739. Id. at 590. See also Matter of E-A-G-, 24 I. & N. Dec. 591, 596 (BIA 2007) (neither 

gang membership nor imputed gang membership constitutes a “particular social group”).

740. Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007).

741. In re C-A-, 23 I. & N. Dec. 951, 957 (BIA 2006).
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Agreeing that “visibility” is a relevant criterion, the First Circuit has 

said that

[t]he BIA has construed In re C-A- to stand for three factors in 

addition to the immutability requirement for defining a social 

group. In addition to immutability, the BIA requires that a “particular social group”: (1) have “social visibility,” meaning that 

members possess “characteristics . . . visible and recognizable by 

others in the [native] country,” (2) be defined with sufficient 

particularity to avoid indeterminacy, and (3) not be “defined exclusively by the fact that its members have been targeted for persecution.”

742

The Ninth Circuit, while seeming to defer to the BIA’s “visibility” criterion,

743 said: “Various factors, such as immutability, cohesiveness, homogeneity, and visibility, are helpful in various contexts, but they are 

not exhaustive. The traditional common law approach, looking at hypothetical cases and commonalities in cases that go one way or the 

other, is more prudent.”744

2. Gender-Related Claims

Gender-related claims—specifically claims by women—for asylum 

have presented a particular challenge for the BIA and the courts. Rape, 

for instance, can provide a basis for asylum if the woman was raped 

partly because of her race, religion, nationality, political opinion, or 

membership in a particular social group.745 But can the category of 

“woman” by itself comprise a “particular social group” such that if a 

woman receives harsh treatment in her country because of her gender, 

she can be granted asylum if the harsh treatment crosses the line from 

discrimination to persecution? The characteristic—gender—is clearly 

742. Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009) (citations omitted). See also 

Santos-Lemus v. Mukasey, 542 F.3d 738, 745 (9th Cir. 2008) (court has “adopted the 

Board’s particularity and social visibility requirements”); Savchuck v. Mukasey, 518 F.3d 

119, 123 (2d Cir. 2008) (“BIA’s interpretation of the ambiguous phrase ‘particular social 

group’ is reasonable”); Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1199 (11th Cir. 

2006).

743. Donchev v. Mukasey, 553 F.3d 1206, 1216–19 (9th Cir. 2009).

744. Id. at 1220. See also Amilcar-Orellana v. Mukasey, 551 F.3d 86, 91 (1st Cir. 2008) 

(“We have no need to reach the broader questions regarding the BIA’s use of a social 

visibility test in its definition of a particular social group.”).

745. See, e.g., In re D-V-, Applicant, 21 I. & N. Dec. 77 (BIA 1993).
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immutable, but an affirmative answer would mean that one-half or 

more of any given population constitutes a “particular social group.” 

The Tenth Circuit addressed this issue:

There may be understandable concern in using gender as a 

group-defining characteristic. One may be reluctant to permit, 

for example, half a nation’s residents to obtain asylum on the 

ground that women are persecuted there. But the focus with respect to such claims should be not on whether either gender 

constitutes a social group (which both certainly do) but on 

whether the members of that group are sufficiently likely to be 

persecuted that one could say that they are persecuted “on account of” their membership. It may well be that only certain 

women—say, those who protest inequities—suffer harm severe 

enough to be considered persecution. The issue then becomes 

whether the protesting women constitute a social group.746

What about a subset of women? Can women who dissent from the 

cultural and legal norms of a society receive asylum if those generally 

applicable cultural and legal norms offend western sensibilities? An 

affirmative answer potentially solves the numbers problem, but it raises 

other problems. Dissenting from societal norms is not clearly immutable and, therefore, would not qualify for “social group” status under 

Acosta. Additionally, in many cases, the dissenting women will not be 

able to show that they are in a “cohesive, homogeneous group,” and 

thus will be unable to satisfy the Ninth Circuit’s Sanchez-Trujillo747 test 

for “social group” status.

In an early case interpreting Acosta, the Third Circuit struggled 

with these issues. Fatin v. INS involved an Iranian woman who based 

her asylum claim, in part, on the fact that her feminist beliefs would be 

compromised by the treatment of women in Iran.748 In defining “social 

group,” the court, following Acosta, concluded that “to the extent that 

the petitioner in this case suggests that she would be persecuted or has 

a well-founded fear that she would be persecuted in Iran simply because she is a woman, she has satisfied the first of the three elements 

that we have noted. She has not, however, satisfied the third element; 

that is, she has not shown that she would suffer or that she has a well746. Niang v. Gonzales, 422 F.3d 1187, 1199–1200 (10th Cir. 2005).

747. Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986).

748. Fatin v. INS, 12 F.3d 1233, 1236–37 (3d Cir. 1993).
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founded fear of suffering ‘persecution’ based solely on her gender.”749

Fatin argued, however, that she belonged to a narrower social group as 

“a member of ‘a very visible and specific subgroup: Iranian women 

who refuse to conform to the government’s gender-specific laws and 

social norms.’”750 The court suggested that this might constitute a “social group” under the Acosta immutability test. This group

does not include all Iranian women who hold feminist views. 

Nor does it include all Iranian women who find the Iranian government’s “gender-specific laws and repressive social norms” 

objectionable or offensive. Instead, it is limited to those Iranian 

women who find those laws so abhorrent that they “refuse to 

conform”—even though, according to the petitioner’s brief, “the 

routine penalty” for noncompliance is “74 lashes, a year’s imprisonment, and in many cases brutal rapes and death.”

Limited in this way, the “particular social group” identified by 

the petitioner may well satisfy the BIA’s definition of that concept, for if a woman’s opposition to the Iranian laws in question 

is so profound that she would choose to suffer the severe consequences of noncompliance, her beliefs may well be characterized 

as “so fundamental to [her] identity or conscience that [they] 

ought not be required to be changed.”751

In Gao v. Gonzales,

752 the Second Circuit applied Acosta and concluded that the applicant’s “social group consists of women who have 

been sold into marriage (whether or not that marriage has yet taken 

place) and who live in a part of China where forced marriages are considered valid and enforceable.”753 And in In re Kasinga,

754 the BIA held 

that female genital mutilation (FGM) constituted persecution in the 

applicant’s case and granted asylum, concluding that the applicant had 

a well-founded fear of persecution on account of her membership in a 

particular social group. The BIA defined the applicant’s social group as 

“young women of the Tchamba-Kunsuntu Tribe who have not had 

FGM, as practiced by that tribe, and who oppose the practice.”755 The 

749. Id. at 1240.

750. Id. at 1241.

751. Id. (internal citation omitted).

752. 440 F.3d 62 (2d Cir. 2006).

753. Id. at 70.

754. 21 I. & N. Dec. 357 (BIA 1996).

755. Id. at 365.
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Attorney General, on review from the BIA, has recognized that a 

woman who has already undergone FGM might nevertheless be entitled to asylum or withholding of removal because FGM isn’t necessarily a one-time event in the life of a woman; and, more broadly, “where 

an alien demonstrates that she suffered past persecution on account of 

one of the statutory bases, it is ‘presumed’ that her life or freedom 

would be threatened in the future . . . on account of the same statutory 

ground.”756

The Tenth Circuit has questioned the BIA’s definition of social 

group in Kasinga, wondering why the social group is not defined solely 

on gender and tribal grounds. In Niang v. Gonzales,

757 the court said 

that

[i]n accordance with Acosta, the particular social group is defined by common characteristics that members of the group either cannot change, or should not be required to change because 

such characteristics are fundamental to their individual identities. The characteristics of being a “young woman” and a “member of the Tchamba-Kunsuntu Tribe” cannot be changed. The 

characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she 

should not be required to change it.758

The court found “it noteworthy that Kasinga’s explanation provides no 

reason why more than gender or tribal membership would be required 

to identify a social group,” concluding that “opposition is not a necessary component of a social group otherwise defined by gender and 

tribal membership.”759

In 2008, the Attorney General asked the BIA to review gender asylum claims in light of judicial and administrative developments in asylum law generally. In Matter of R-A-,

760 a victim of domestic violence 

in Guatemala applied for asylum, contending “that the serious harm 

inflicted on her by her husband constituted persecution on account of 

756. Matter of A-T-, 24 I. & N. Dec. 617, 622 (AG 2008) (BIA made both a factual 

error in concluding that FGM was necessarily a one-time event and a legal error in placing 

on alien, who suffered persecution in past, the burden of demonstrating likelihood of 

persecution in future).

757. 422 F.3d 1187 (10th Cir. 2005).

758. Id. at 1200.

759. Id.

760. 24 I. & N. Dec. 629 (AG 2008).
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her membership in a particular social group, defined as ‘Guatemalan 

women who have been involved intimately with Guatemalan male 

companions, who believe that women are to live under male domination.’”761 The BIA had denied the claim in 1999; the Attorney General 

vacated that decision in 2001, staying reconsideration until a regulation 

was issued. But a final rule was never adopted.

762 In returning the case 

to the BIA, the Attorney General said:

In the years since the issuance of the stay order, both the Board 

and courts of appeals have issued numerous decisions relating 

to various aspects of asylum law under the existing statutory and 

regulatory provisions. Although these intervening decisions 

may not have directly resolved the issues presented in Matter of 

R-A-, some of them have addressed, for example, the terms 

“persecution,” “on account of,” and “particular social group,”

and thus may have relevance to the issues presented with respect 

to asylum claims based on domestic violence.763

C. Applying for Asylum, Withholding of Removal, and 

Convention Against Torture Relief

An application for asylum is treated as an application for withholding 

of removal under § 241(b)(3) of the INA, and, where the facts warrant 

or the alien pleads, as an application for withholding of removal under 

the Convention Against Torture (CAT).

764 Asylum issues arise in three 

contexts: (1) upon the alien’s arrival into the United States with a 

“credible fear” determination as ascertained by an asylum officer;

(2) when the alien makes an affirmative application for asylum with 

U.S. Citizenship and Immigration Services (USCIS); and (3) when the 

alien seeks asylum as a ground for relief from removal in the context of 

a removal hearing before an immigration judge. 

First, arriving aliens who lack documents or possess only fraudulent or invalid documents are placed in expedited removal.765 If, how761. Id.

762. Id.

763. Id. at 630.

764. See 8 C.F.R. §§ 208.1(a) & 208.13(c)(1) (2008).

765. INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (2006). The substantive grounds for inadmissibility can be found at INA § 212(a)(6(C) & (a)(7), 8 U.S.C. § 1182(a)(6)(C) & (a)(7) 

(2006).
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ever, “the alien indicates either an intention to apply for asylum . . . or 

a fear of persecution,” the alien is not immediately removed but instead is interviewed by an asylum officer.766 At this stage, the asylum 

officer is asked to make a “credible fear” determination. If the alien is 

found to possess a credible fear of persecution, she is entitled to a full 

hearing on the claim; but if the asylum officer determines that no 

credible fear exists, the alien is subject to removal with a right to seek 

review of the credible fear determination by an immigration judge.767

There is no federal court review of the credible fear determination, and 

habeas review is limited only to questions of the person’s status (e.g., 

citizenship or permanent residence).768

Second, applications for asylum must be filed within one year of 

the alien’s arrival in the United States unless there are “extraordinary 

circumstances” for the delay, or the application is based on changed 

circumstances that materially alter the alien’s eligibility for asylum.769

Unless the alien is in removal proceedings during this time frame, the 

alien will file an asylum application with the USCIS, and the case will 

be referred to an asylum officer for adjudication. Prior to deciding the 

case, the asylum officer will conduct an interview with the applicant “in 

a nonadversarial manner.”770 The asylum officer can grant the application, deny the application if the alien has some other authorized status 

in the United States, or refer the alien for a removal proceeding where 

the alien can renew the asylum claim before an immigration judge.771

The third way that asylum claims arise is as a defensive measure 

before an immigration judge in the context of a removal hearing. The 

removal proceeding may have been initiated by an asylum officer’s 

referral of an arriving alien after a determination that the alien has a 

“credible fear” of persecution or torture. Or it may have been initiated 

by an asylum officer’s referral of an alien after the adjudication of the 

766. INA § 235(b)(1)(A)(ii), 8 U.S.C. § 1225(b)(1)(A)(ii) (2006). 

767. INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (2006). The asylum officer can also determine whether the alien has a credible fear of torture. 8 C.F.R. § 208.30(e)(3) (2008). 

768. INA § 242(e)(2) & (5), 8 U.S.C. § 1252(e)(2) & (5) (2006). 

769. INA § 208(a)(2)(B) & (D), 8 U.S.C. § 1158(a)(2)(B) & (D) (2006). This limitation 

applies only to asylum claims and not withholding of removal or relief under the CAT. 

770. 8 C.F.R. §§ 208.9(b), 1208.9(b) (2008).

771. 8 C.F.R. §§ 208.14, 1208.14 (2008). The asylum officer does not rule on the application for withholding of removal or claims under the CAT.
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alien’s affirmative asylum application. Finally, the asylum claim may 

arise for the first time in the context of a removal proceeding initiated 

in the normal course of immigration enforcement. In addition to the 

claim of asylum, assuming it was timely filed, the immigration judge 

will also consider claims for withholding of removal and CAT relief. 

Unlike the decisions of an asylum officer, decisions by an immigration 

judge are subject to BIA review.

Whether before an asylum officer or an immigration judge, the 

asylum applicant bears the burden of establishing that she is entitled to 

asylum, withholding of removal, or CAT relief.

772 With respect to asylum applications, the applicant’s testimony alone “may be sufficient to 

sustain the applicant’s burden without corroboration” if the trier of fact 

is satisfied “that the applicant’s testimony is credible, persuasive, and 

refers to specific facts sufficient to demonstrate that the applicant is a 

refugee.”773 Where called for by the trier of fact, the applicant must 

provide corroborating evidence “unless the applicant does not have 

the evidence and cannot reasonably obtain the evidence.”774

1. Legal Standard of Proof

In the 1980s, the Supreme Court decided two cases involving the standard of proof in withholding of removal cases and asylum cases, respectively. In INS v. Stevic,

775 the Court interpreted the withholding of 

removal statute to determine the meaning of the phrase “alien’s life or 

freedom would be threatened.” It held that an applicant for withholding of removal had the burden of establishing a “clear probability of 

persecution” if returned home, and that this meant such persecution 

was “more likely than not.”776

The INS argued that the same standard should apply to asylum 

claims, which require a showing of persecution or a well-founded fear 

of persecution. The Supreme Court disagreed. It concluded that the 

two standards were plainly different and that an alien could establish a 

claim for asylum without showing that persecution was more likely 

than not: “One can certainly have a well-founded fear of an event hap772. See INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i) (2006). 

773. INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii) (2006). 

774. Id.

775. 467 U.S. 407 (1984).

776. Id. at 429–30.
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pening when there is less than a 50% chance of the occurrence taking 

place.”777 Noting some ambiguity in the phrase “well-founded fear,” 

the Court recognized the agency’s role in further defining the term 

consistent with the Court’s opinion.778 The regulations state the alien 

must show (1) “fear of persecution” and (2) that “[t]here is a reasonable possibility of suffering such persecution if he or she were to return 

to that country.”779

With respect to CAT, the convention’s nonreturn provision refers 

to those who have “substantial grounds” for the belief that they will 

suffer torture if sent to the proposed country of removal.

780 The regulations provide that the applicant must “establish that it is more likely 

than not that he or she would be tortured if removed to the proposed 

country of removal.”781

2. Substantial Evidence in the Asylum Context

The reviewing court will uphold the decision of the Board of Immigration Appeals (or the immigration judge) if the decision “is supported 

by reasonable, substantial, and probative evidence.”782 Where the BIA 

summarily affirms the immigration judge’s decision, the courts impute 

the immigration judge’s reasoning to the BIA.783 Despite the deferential 

standard, the courts reverse a substantial number of asylum cases for 

lack of substantial evidence. What follows is a representative sample.

Yan v. Gonzales784 involved a pro se petitioner seeking review of a 

BIA order that summarily affirmed the immigration judge, denying the

777. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).

778. Id. at 448.

779. 8 C.F.R. §§ 208.13(b)(2) & 1208.13(b)(2) (2008). See also Matter of Mogharrabi, 19 

I. & N. Dec. 439, 445 (BIA 1987) (“a reasonable person in [alien’s] circumstances would 

fear persecution”).

780. See Convention Against Torture and Other Cruel, Inhuman, or Degrading 

Treatment or Punishment Art. 3, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, 

U.N. Doc. A/39/51 (Dec. 10, 1984).

781. 8 C.F.R. §§ 208.16(c)(2) & 1208.16(c)(2) (2008).

782. E.g., Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007) (remand because denial of asylum not supported by substantial evidence). The court continued: “Under the 

statute, ‘the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Id.

783. See, e.g., Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir. 2006).

784. 438 F.3d 1249 (10th Cir. 2006).
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petitioner asylum, withholding of removal, and CAT relief.785 Yan, a 

Christian, claimed asylum based on religious persecution in his native 

China. The IJ disbelieved Yan because the judge “had ‘concerns about 

[Mr. Yan’s] commitment to Christianity’ sufficient to give him ‘serious 

doubts about [Mr. Yan’s] credibility,’” and the judge ruled “that Mr. 

Yan had not shown ‘that it is likely that he would be or would have 

been targeted by the authorities in China on account of his religious 

activity.’”786 The court concluded that the IJ’s determinations were not 

supported by substantial evidence.787

In questioning Yan’s Christian commitment, the IJ concluded that 

Yan “seemed to have only rudimentary knowledge of [the] Christian 

religion.”788 Although the Tenth Circuit ultimately concluded “that a 

detailed knowledge of Christian doctrine may be irrelevant to the sincerity of an applicant’s belief,”789 it was troubled with two aspects of the 

IJ’s finding. First, the IJ “gave no good reason for rejecting Mr. Yan’s 

testimony about his personal experiences with Christianity.”790 In examining the record, the court found a rich account of Yan’s encounter 

with a Christian while recuperating in a hospital, his attendance at 

Sunday worship service and other meetings of Christians, and his baptism on December 25, 1998. In response to a question about how he 

felt after being baptized, Yan answered, “I [felt] that I have gone 

through a rebirth experience . . . Before, I didn’t know that in this 

world, there’s such a loving God that will have his son to die for 

me.”791 Second, even the IJ’s finding that Yan knew little about Christianity was not supported by the evidence. The record revealed that 

Immigration and Customs Enforcement’s trial attorney cross-examined 

Yan on “his knowledge of the Bible and Christian doctrine,” including 

785. Id. at 1250–51.

786. Id. at 1251.

787. Id. For another of the myriad of cases remanding for lack of substantial evidence, see Gomes v. Gonzales, 473 F.3d 746 (7th Cir. 2007) (Catholics facing persecution in 

Bangladesh). But see Lolong v. Gonzales, 484 F.3d 1173, 1181 (9th Cir. 2007) (upholding 

BIA’s determination that subjective fear of persecution felt by Chinese Christian in Indonesia was not objectively reasonable).

788. Yan, 438 F.3d at 1252.

789. Id. at 1255.

790. Id.

791. Id. at 1253.
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the use of trick questions.792 Quoting extensively from this testimony, 

the Tenth Circuit made several observations:

First, Mr. Yan’s responses to the Bible questions were fairly accurate. He was able to complete the Beatitudes question, notwithstanding an error by the interpreter. He knew four of the 

first five books of the Bible, and referred to the first five books 

of Moses as the “Book of the Law,” consistent with Jewish practice, which calls these five books as the Torah, or “law.” He had, 

unsurprisingly, never heard of the book of Nephi, which is 

found in the Book of Mormon and not the Bible. He knew what 

the Psalms are. While he became confused about confirmation, 

that may be understandable if his particular group was Protestant and non-sacramental.793

With respect to persecution, Yan had testified that governmental 

authorities “broke up his home church, confiscated his Bible, and 

threw him in jail, where he was beaten.”794 The Tenth Circuit found 

that the IJ’s conclusion that “a ‘small and unobtrusive’ house church 

like Mr. Yan’s . . . would have been tolerated by the authorities, if they 

knew about it at all,” had “at least some support in a State Department 

Country Religious Freedom Report.”795 The court was troubled by the 

immigration judge’s reasoning because the immigration judge “appears 

to have made an assumption that just because the authorities do not 

ordinarily attack home churches, they would not have done so in Mr. 

Yan’s case.”796 In concluding that the IJ’s finding was not supported by 

substantial evidence, the court said: “The IJ gave no reason, other than 

the minor inconsistency previously noted, to discount the particular 

facts Mr. Yan related concerning persecution he endured as a Christian.”797

Gao v. Board of Immigration Appeals798 involved a claim by a Chinese couple who applied for asylum based on the wife’s forced sterilization. The IJ denied the claims and the BIA affirmed. The denial cen792. Id.

793. Id. at 1254.

794. Id. at 1256.

795. Id.

796. Id.

797. Id.

798. 482 F.3d 122 (2d Cir. 2007).
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tered solely on the IJ’s “determination that the couple lacked credibility.”799 The “adverse credibility determination was grounded exclusively on three purported inconsistencies in their testimony.”800 In reversing, the Second Circuit concluded that the first two factual findings 

were not supported by substantial evidence and that it did not have to 

address the third because the BIA had not relied on it in its holding.801

The first purported inconsistency centered around the birthplace 

of the couple’s first child. The IJ concluded that Mrs. Gao’s testimony 

was “internally inconsistent” and that Mr. Gao’s testimony had 

changed from a previous hearing to the current one. The IJ concluded 

that Mrs. Gao had testified that her first child was born at an aunt’s 

house and then also testified that the child was born in a hospital. In 

reviewing this finding, the court said: “When explaining Mrs. Gao’s 

internal inconsistency regarding the first child, the IJ mistakenly discussed the birth of the Gaos’ son, who is their second child.”802 It appears that translation problems may have caused the immigration 

judge’s confusion, but “[i]n short, it is not accurate to say that Mrs. 

Gao ‘testified that her son was born at her aunt’s house [and] . . . then 

recanted that testimony and indicated that her son was born in the 

hospital.’”803

The IJ also found that Mr. Gao had changed his story as to birthplace from an earlier hearing to the instant one. The transcript from 

the earlier hearing was, however, unavailable and, therefore, never introduced into evidence. In finding no substantial evidence to support 

the IJ’s conclusion, the court said that the “IJ appears simply to have 

adopted the assumption implicit in the cross-examiner’s question; an 

assumption underlying a question, however, is not evidence.”804 The IJ

asserted a second inconsistency with respect to problems associated 

with Mrs. Gao’s second pregnancy. “The IJ asserted that Mr. Gao had 

previously testified ‘that they had no difficulties during her second 

pregnancy, had no confrontations with anyone, and had no problems 

with the Chinese government.’ Again, there was no record of any such 

799. Id. at 123.

800. Id.

801. Id. at 123, 126.

802. Id. at 128.

803. Id. at 129.

804. Id.
immigration law: a primer part x

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testimony in evidence. Rather, during the 2002 hearing, the government attorney and the IJ repeatedly stated simply that Mr. Gao had 

indicated in 1999 that the couple had ‘no problems’ during the second 

pregnancy.”805 The court concluded: “That finding by the IJ is a complete misreading of the record that cannot survive appellate review, 

however deferential.”806

3. Corroborating Evidence

The regulations say that an applicant’s testimony alone, if found credible, can be enough to meet the applicant’s burden of proof.807 The 

INA, as amended by the REAL ID Act, however, now requires the asylum applicant to corroborate credible testimony when such corroboration is called for by the trier of fact “unless the applicant does not have 

the evidence and cannot reasonably obtain the evidence.”808 Regarding 

judicial review of the availability of corroborating evidence, the 

amended Act reads: “No court shall reverse a determination made by a 

trier of fact with respect to the availability of corroborating evidence 

. . . unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”809

Interpreting this amendment, the Second Circuit has said that it will 

remand “where the IJ has not relied on substantial evidence in the record in finding that documentation was reasonably available.”810

Prior to the REAL ID Act, the courts had already developed an extensive body of cases on the subject of corroboration. And much in 

these cases survives the statute’s mandate requiring deference to the 

immigration judge’s decision on the availability of corroborating evidence. The Third Circuit has held that even an otherwise credible applicant’s case may be undermined by the failure to provide corroborating evidence “where (1) the IJ identifies facts for which it is reasonable 

to expect the applicant to produce corroboration, (2) the applicant 

fails to corroborate, and (3) the applicant fails to adequately explain 

805. Id. at 130.

806. Id. at 132.

807. 8 C.F.R. §§ 208.16(b) & 1208.16(b) (2008).

808. E.g., INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii) (2006).

809. INA § 242(b)(4)(D), 8 U.S.C. § 1252(b)(4)(D) (2006).

810. Edimo-Doualla v. Gonzales, 464 F.3d 276, 285 (2d Cir. 2006).
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that failure.”811 Recognizing the deference it owes to the trier of fact on 

the availability of corroborating evidence, the court held that “the 

REAL ID Act does not change our rules regarding the IJ’s duty to develop the applicant’s testimony, and in particular, to develop it in accord with the [three] steps” because it “cannot ascertain whether the 

trier of fact would be compelled to find the evidence unavailable unless the applicant is given a chance to explain why he thinks it is unavailable.”812 The court will vacate and remand if the IJ fails to follow 

these three steps, fails to give notice of what facts are expected to be 

corroborated, or fails to give the applicant adequate time to provide 

such evidence or explain its absence.813

“To ensure that IJs have the freedom to require supporting evidence, yet do not inappropriately demand it,” the Seventh Circuit “require[s] that, before denying a claim for lack of corroboration, an IJ 

must: (1) make an explicit credibility finding; (2) explain why it is reasonable to have expected additional corroboration; and (3) explain 

why the petitioner’s reason for not producing that corroboration is inadequate.”814 Where neither the IJ nor the BIA “make[s] an explicit

credibility finding, or even indicate[s] why [an applicant’s] testimony 

fails to carry [the] burden of proof,” it was improper to demand corroborating evidence.815 But the Second Circuit has held that where the 

trier of fact makes an adverse credibility determination based on the 

applicant’s testimony, the trier of fact need not “(a) identify the particular pieces of missing, relevant documentation, and (b) show that 

the documentation at issue was reasonably available to the petitioner.”816

Without discussing the implications of the REAL ID Act for the 

court’s review of an IJ’s requirement of corroboration, the Ninth Circuit concluded “it is inappropriate to base an adverse credibility determination on an applicant’s inability to obtain corroborating affidavits from relatives or acquaintances living outside of the United 

811. Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 192 (3d Cir. 2007).

812. Id.

813. Id.

814. Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006).

815. Id. at 726–27.

816. Diallo v. Gonzales, 445 F.3d 624, 633 (2d Cir. 2006).
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States—such corroboration is almost never easily available.”817 “It was 

even more inappropriate . . . for the IJ to support his adverse credibility determination with [applicant’s] inability to obtain live testimony 

from persons living abroad.”818

817. Zhou v. Gonzales, 437 F.3d 860, 866 (9th Cir. 2006) (citing Sidhu v. INS, 220 F.3d 

1085, 1091–92 (9th Cir. 2000) (citing Lopez-Reyes v. INS, 79 F.3d 908, 912 (1996))).

818. Id.
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XI. The Intersection of Criminal Law and 

Immigration Law: Ineffective Assistance of 

Counsel in Criminal Proceedings

Criminal law and immigration law intersect in two distinct places. The 

INA criminalizes some immigration violations and, as we have seen, 

some criminal violations have adverse immigration consequences, including making a person inadmissible, deportable, and ineligible for 

certain forms of relief. A discussion of the criminal consequences of 

violating the immigration laws is beyond the scope of this monograph.819 The immigration consequences of criminal behavior have 

been discussed at various points throughout this monograph. This section provides an overview of an emerging ethical and constitutional 

issue with respect to one aspect of the intersection.

The intersection of criminal law and immigration law has become 

increasingly important over the last two decades, especially with the 

continued expansion of the aggravated felony definition and steppedup immigration enforcement efforts. In 1986, immigration enforcement 

resulted in the removal of 1,978 criminal aliens.820 That number had 

grown to 71,597 by 2001.821 And in 2008, the Department of Homeland 

Security removed 97,100 criminal aliens.822

In INS v. St. Cyr, the Supreme Court said: “Preserving the client’s 

right to remain in the United States may be more important to the client than any potential jail sentence,”823 recognizing that “competent 

defense counsel, following the advice of numerous practice guides, 

819. For a detailed look, see Robert McWhirter, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers 190–346 (2006).

820. Department of Homeland Security, Office of Immigration Statistics, 2001 Statistical Yearbook of the Immigration and Nationalization Service, Enforcement Section 6.

821. Id.

822. Department of Homeland Security, Office of Immigration Statistics, Annual 

Report (July 2009), Immigration Enforcement Actions: 2008, available at

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_08.pdf. 

823. INS v. St. Cyr, 533 U.S. 289, 322 (2001) (quoting Bender, Criminal Defense 

Techniques §§ 60A.01 & 60A.02[2] (1999)) (internal quotes omitted). See also United States 

v. Kwan, 407 F.3d 1005, 1016 (9th Cir. 2005) (quoting St. Cyr and holding that attorney 

provided ineffective assistance of counsel by providing criminal defendant wrong advice 

about the immigration consequences of criminal proceeding). 
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would have advised” the client of the immigration consequences of the 

criminal proceedings.824 But does the Sixth Amendment right to counsel require counsel to advise an alien criminal defendant of the potential immigration consequences of a guilty plea or a criminal conviction? In other words, can a criminal conviction be set aside on the 

grounds of ineffective assistance of counsel where the defense counsel 

provides an alien who is a criminal defendant with inaccurate or no 

advice regarding such immigration consequences?825

Strickland v. Washington826 established a two-part test for determining when the Sixth Amendment is breached by the criminal defense 

counsel’s failure to provide effective assistance of counsel. “First, the 

defendant must show that counsel’s performance was deficient. This 

requires showing that counsel made errors so serious that counsel was 

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.”827 To prevail on the first prong, “the 

defendant must show that counsel’s representation fell below an objective standard of reasonableness.”828 To test reasonableness, “[t]he Sixth 

Amendment . . . relies . . . on the legal profession’s maintenance of 

standards sufficient to justify the law’s presumption that counsel will 

fulfill the role in the adversary process that the Amendment envisions.”829 “Prevailing norms of practice as reflected in American Bar 

Association standards and the like are guides to determining what is 

reasonable.”830

The ABA Standards for Criminal Justice provide specific norms 

providing “an objective standard of reasonableness” for criminal defense attorneys.831 Standard 14-3.2 states that “[t]o the extent possible, 

defense counsel should determine and advise the defendant . . . as to 

the possible collateral consequences that might ensue from entry of the 

824. St. Cyr, 533 U.S. at 323 n.50.

825. For an in-depth look at this question, see Gabriel Chin & Richard Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002).

826. 466 U.S. 668 (1984).

827. Id. at 687.

828. Id. at 688. 

829. Id.

830. Id. (citations omitted).

831. Seeid. (referring to ABA Standards).
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139

contemplated plea.”832 The commentary to standard 14-3.2 states that 

“defense counsel should . . . tak[e] the initiative to learn about rules in 

this area rather than waiting for questions from the defendant, who will 

frequently have little appreciation of the full range of consequences 

that may follow from a guilty . . . plea.”833

Counsel should interview the client to determine what collateral 

consequences are likely to be important to a client given the client’s particular circumstances. . . . For example, . . . it may well be 

that many clients’ greatest potential difficulty, and greatest priority, will be the immigration consequences of conviction. To 

reflect this reality, counsel should be familiar with the basic 

immigration consequences that flow from different types of 

guilty pleas, and should keep this in mind in investigating law 

and fact and advising the client.834

The courts of appeals (and other courts) split on the question of 

whether the failure to properly advise an alien criminal defendant of 

the immigration consequences of a guilty plea or conviction can constitute ineffective assistance of counsel under the Sixth Amendment.835

Three views have emerged: (1) counsel’s failure does not constitute 

ineffective assistance because the immigration consequences are 

merely collateral to the criminal proceeding; (2) inaccurate advice and 

no advice present different cases, with inaccurate advice creating the 

stronger case for an ineffective assistance claim; and (3) both inaccurate advice and failure to advise can constitute ineffective assistance.

A number of courts have impliedly injected a third prong into 

Strickland’s “ineffective assistance” calculus: the defendant must show 

that counsel’s deficient performance pertained to matters directly related to the criminal proceeding and not to the collateral consequences 

of a criminal conviction, no matter how harsh those consequences. 

This is known as the “collateral consequences doctrine,” which grows 

out of a judge’s duty under the Fifth Amendment to advise defendants 

of the direct consequences of a guilty plea. According to these courts, 

832. ABA Standards for Criminal Justice 116 (3d ed. 1999). 

833. Id. at 127. 

834. Id.

835. The Supreme Court will review this question in a case argued in October 2009.

See Padilla v. Kentucky, 129 S. Ct. 1317, cert. granted, 130 S. Ct. 42 (U.S. Sept. 4, 2009) (No. 

08-651).
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the failure of defense counsel to properly research and advise a criminal defendant about the collateral consequences of a conviction does 

not amount to ineffective assistance of counsel. In Broomes v. Ashcroft, 

for example, the Tenth Circuit said: “deportation remains a collateral 

consequence of a criminal conviction, and counsel’s failure to advise a 

criminal defendant of its possibility does not result in a Sixth Amendment deprivation.”836

Referring to INS v. St. Cyr,

837 the Second Circuit, in United States v. 

Couto, said that “recent Supreme Court authority supports [a] broader 

view of attorney responsibility.”838 Rejecting the logic underlying the 

collateral consequences doctrine, the court held that “affirmative misrepresentation by counsel as to the deportation consequences of a 

guilty plea is today objectively unreasonable.”839 Couto’s holding implicitly rejects the collateral consequences doctrine because misadvice 

by a criminal defense attorney, like nonadvice, does “not alter the collateral nature of deportation to a criminal proceeding.”840

Other courts have explicitly rejected the collateral consequences 

doctrine, at least in cases where the ineffective assistance of counsel 

claim involves either the failure to advise a criminal defendant of the 

immigration consequences of a criminal proceeding or the rendering 

of inaccurate advice.841 The California Supreme Court, for instance, 

rejected the collateral consequences doctrine in an ineffectiveassistance case842 on three grounds. First, it noted Strickland’s holding

that “the performance inquiry must be whether counsel’s assistance 

was reasonable considering all the circumstances.”843

836. Broomes v. Ashcroft, 358 F.3d 1251, 1256–57 (10th Cir. 2004).

837. 533 U.S. 289 (2001).

838. United States v. Couto, 311 F.3d 179, 187–88 (2d Cir. 2002).

839. Id. at 188. “Because . . . Defendant was affirmatively misled by her attorney,” the 

court did not “reconsider whether the standards of attorney competence have evolved 

to the point that a failure to inform a defendant of the deportation consequences of a 

plea would by itself now be objectively unreasonable.” Id.

840. Broomes, 358 F.3d at 1256. However, “[a] consequence is collateral if it ‘remains 

beyond the control and responsibility of the district court in which that conviction was 

entered.’” Id. (citing United States v. Gonzales, 202 F.3d 20, 27 (1st Cir. 2000)).

841. See State v. Paredez, 101 P.3d 799 (N.M. 2004); In re Resendiz, 19 P.3d 1171 (Cal. 

2001); People v. Pozo, 746 P.2d 523 (Colo. 1987).

842. E.g., In re Resendiz, 19 P.3d 1171 (Cal. 2001).

843. Id. at 1179.
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Second, the collateral consequences doctrine and ineffective assistance claims have separate origins. Recognition of the right to 

competent representation in the guilty plea context directly 

stemmed from the Sixth Amendment’s general principle that all 

defendants . . . are entitled to the effective assistance of competent counsel. The collateral consequences doctrine, on the other 

hand, originated as a policy-based adjunct to the due process requirement that a court ensure the guilty pleas it accepts are voluntarily given.844

Defense counsel, the court said,

clearly has far greater duties toward the defendant than has the 

court taking a plea. Effective counsel, for example, has a general 

duty to conduct a reasonable investigation of the case enabling 

counsel to make informed decisions about how best to represent

the client. The court has no such duty.845

The court concluded:

For the foregoing reasons, to tie defense counsel’s Sixth 

Amendment duties to the constitutional minima the due process 

clause requires of courts, by carving out, for erroneous advice 

concerning immigration consequences, an exception to the general requirement that counsel perform with reasonableness under prevailing professional norms would be illogical and counterproductive.846

Third, deportation is a unique collateral consequence—therefore, the 

holding is not necessarily transferable to other contexts.847

844. Id. at 1179–80 (internal quotations and citations omitted). 

845. Id. at 1181–82 (“the court’s function and duties quintessentially exclude . . . assistance, advocacy and consultation”). 

846. Id. at 1182 (internal quotations and citations omitted). 

847. Id.
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XII. Issues of Workplace and State-Assisted

Enforcement

A. Employer Sanctions

Employer sanctions were a key component of the Immigration Reform 

and Control Act of 1986 (IRCA). IRCA amended the INA, making it, 

for the first time, unlawful to employ unauthorized noncitizens. In 

other words, IRCA made it unlawful to hire an alien who entered and 

remains in the United States clandestinely, who has overstayed the period of authorized admission, or who holds a visa that does not 

authorize employment. IRCA makes it unlawful to knowingly hire, recruit, or refer for a fee unauthorized aliens.848 It is also unlawful to 

continue to employ an alien knowing that the alien is or will become 

unauthorized.849 The Ninth Circuit has interpreted “knowing” to include constructive knowledge.850 “[A] deliberate failure to investigate 

suspicious circumstances imputes knowledge to an employer.”851 In 

addition to the civil and criminal penalties for knowingly hiring an unauthorized alien, the employer can also face criminal prosecution for 

harboring an illegal alien.852

Compliance with IRCA’s employment verification system provides 

a safe harbor for employers;853 failure to comply provides an independent ground of unlawfulness.854 To verify employment eligibility, 

every employer must document the identity and work authorization of 

every prospective employee.855 At the time of employment, the employer must present the prospective employee with a form, which is 

known as the I-9 form. The prospective employee should sign the 

form, attesting, under penalty of perjury, that she is a U.S. citizen, 

848. INA § 274A(a)(1)(A), 8 U.S.C. § 1324a(a)(1)(A) (2006).

849. Id. at (a)(2).

850. Mester Mfg. Co. v. INS, 879 F.2d 561, 567 (9th Cir. 1989).

851. New El Rey Sausage Co., Inc. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991) (internal 

quotations omitted).

852. See United States v. Kim, 193 F.3d 567 (2d Cir. 1999).

853. INA § 274A(a)(3), 8 U.S.C. § 1324a(3) (2006).

854. INA § 274A(a)(1)(B), 8 U.S.C. § 1324a(a)(1)(B) (2006).

855. INA § 274A(b), 8 U.S.C. § 1324a(b) (2006).
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permanent resident alien, or an alien authorized for employment. The 

employer also must sign the form, attesting, under penalty of perjury, 

that the employer has verified the prospective employee’s authorization to work by examining documents (a list of qualified documents is

supplied by the agency) establishing the employee’s identity and 

authorization to work in the United States.856 The employer is required 

to retain the I-9 forms for a specified number of years, allowing the 

immigration enforcement authorities the opportunity to review and 

audit compliance.857 The employer has complied “if the document reasonably appears on its face to be genuine.”858

Upon being found by an administrative law judge to have knowingly employed unauthorized aliens, the employer can be ordered to 

pay civil money penalties ranging from $250 to $2,000 for each unauthorized alien for a first violation, up to between $3,000 and $10,000 

per alien for a third violation.859 Criminal penalties can be imposed for 

“pattern or practice” violations.860 For violating the paperwork verification system, the employer can be fined between $100 and $1,000 for 

each employee whose identity and work authorization were not verified 

in accordance with the statute.861

B. Antidiscrimination Provisions

Fearing that the prospect that employer sanctions might lead some 

employers to engage in discriminatory hiring practices, Congress included, in its 1986 reforms, antidiscrimination provisions to supplement Title VII of the Civil Rights Act of 1964. The INA prohibits national origin discrimination and discrimination because of the individual’s citizenship status if the individual is a citizen or national of the 

United States or is a permanent resident, refugee, or asylum recipient 

who intends to become a citizen when eligible.862 An employer violates 

this provision by failure to honor the identification and work authori856. INA § 274A(b)(1), 8 U.S.C. § 1324a(b)(1) (2006).

857. Id. at (b)(3).

858. Id. at (b)(1)(A).

859. Id. at (e)(4)(A)(iii).

860. Id. at (f).

861. Id. at (e)(5).

862. INA § 274B(a), 8 U.S.C. § 1324b(a) (2006).
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145

zation documents tendered by the alien if those documents comply 

with the statute and appear genuine on their face. It is also a violation 

to request that the employee produce more or different documents to 

prove identity and work authorization.863 Pursuant to an elaborate enforcement scheme, an administrative law judge can order several 

remedies against offending employers, including the hiring of individuals; assessing civil money penalties, which can escalate for successive violations; posting of notices in the workplace; and ordering implementation ofworkplace education programs.864

C. The Complex Interplay Between Employer Sanctions and 

the Antidiscrimination Provisions

The interplay between employer sanctions and the antidiscrimination 

provisions can raise delicate problems for employers. The employer 

violates the antidiscrimination provisions if it asks for more or different 

documentation than required under the employer verification system. 

But the employer can also be sanctioned for knowingly hiring an unauthorized alien. And the employer’s obligation to not knowingly employ 

unauthorized aliens is ongoing. Moreover, deliberate failure to investigate suspicious circumstances may impute knowledge to an employer.

In Zamora v. Elite Logistics, Inc.,

865 the Tenth Circuit addressed the

issue of whether an employer can require more or different documents 

from the alien without running afoul of the antidiscrimination provisions. That case involved a Title VII claim of discrimination by a former employee who was asked to produce additional documents after 

the company discovered that someone else had been using the employee’s Social Security number. The company had hired several hundred workers in the year 2000 without being in full compliance with the 

employment verification provisions of the Act. Zamora was hired in 

2001 in full compliance with the Act’s verification provisions. At the 

end of 2001, the company received a tip that the INS would be investigating firms in its area. Knowing of its problematic hiring practices in 

2000, the company hired two independent contractors to verify its employees’ Social Security numbers. The investigation revealed that an863. INA § 274B(a)(6), 8 U.S.C. § 1324b(a)(6) (2006).

864. Id. at (g).

865. 478 F.3d 1160 (10th Cir. 2007) (en banc).
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other person had been using Zamora’s Social Security number. At this 

point, the company asked Zamora for additional documentation and 

suspended him until he provided such documentation. Zamora 

brought in his annual Social Security Administration report, which 

raised more problems because the birthdate on the report did not 

match the birthdate on file with the company. The company later rejected his certificate of naturalization, and he sued for employment 

discrimination under Title VII. The Tenth Circuit held that “[b]ecause 

Zamora failed to present sufficient evidence establishing a genuinely 

disputed issue of fact as to whether or not Elite’s proffered reason for 

firing Zamora was a pretext for discrimination, summary judgment for 

Elite was warranted on this claim.”866

Since Zamora involved a Title VII claim, the Tenth Circuit did not 

need to address the interplay between the employer sanctions and the 

antidiscrimination provisions of the Act. A concurring and dissenting 

opinion, however, shed light on the difficulties faced by an employer 

attempting to comply with both the employer sanction and antidiscrimination provisions. 

The concurrence rejected the relevance of the antidiscrimination 

provisions in adjudicating a Title VII claim.867 It did, however, find 

IRCA’s employer sanctions provision relevant:868

It may have been wrong, but it was not unreasonable for [the 

company] to believe that, under these circumstances, examination of the naturalization certificate would fail to bring [it] into 

compliance with IRCA. . . . [The company] may have reasonably 

believed that while examination of a facially valid naturalization 

certificate would satisfy [its] statutory duties at the hiring stage, 

once the company was confronted with a specific question about 

866. Id. at 1167.

867. Id. at 1175 (McConnell, J., concurring and concurring in judgment) (“This case 

arises under Title VII—not IRCA’s anti-discrimination provisions—and the principles we 

interpret will apply across the board to all Title VII claims. It would be contrary to congressional intent for us to ‘broaden’ Title VII by interpreting it to coincide with the IRCA 

anti-discrimination provisions. To confine our analysis to Title VII does not ‘go far in 

insulating employers from national origin discrimination claims,’ as the dissent charges.”).

868. Id. at 1173 (“IRCA is relevant here in two respects”) (McConnell, J., concurring).
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147

a worker’s documentation, it was under a duty to investigate and 

resolve that specific concern.869

Addressing the Ninth Circuit’s rule that constructive knowledge is sufficient for a violation of the employer sanctions provisions, the concurrence said:

Whether or not this Court ultimately agrees with the Ninth Circuit’s interpretation—which we need not decide in this case—

New El Rey Sausage demonstrates that [the company’s] diligence 

in seeking resolution of all reported SSN discrepancies was 

within the bounds of reasonableness and, therefore, that [its] 

continued focus on resolving Mr. Zamora’s SSN problem does 

not constitute strong evidence of pretext.870

The dissent argued that IRCA’s employer sanctions provisions

could not be isolated from the antidiscrimination provisions.

Employer sanctions . . . represent only one side of the IRCA coin. 

When IRCA was initially debated, advocates and members of 

Congress voiced widespread concerns that the Act would become a tool of invidious discrimination against HispanicAmericans and other minorities. Although the original bill introducing IRCA did not contain strong anti-discrimination 

measures, the full House voted to include a significant antidiscrimination amendment.871

According to the dissent,

[t]he concurrence . . . suggests that because employers face sanctions for knowingly continuing to employ unauthorized aliens, 

employers should be given a virtual safe-harbor against Title 

VII claims for investigating an employee, so long as they cite 

IRCA to defend their actions. Assuredly, employers should undertake meaningful investigation if an employee’s lawful work 

status is legitimately called into question. However, fear of 

869. Id. at 1177 (citation omitted) (McConnell, J., concurring).

870. Id.

871. Id. at 1189 (Lucero, J., dissenting). “I do not suggest that IRCA’s antidiscrimination provisions necessarily guide our analysis. This dissent merely points out 

that allowing employers to cite IRCA concerns as a shield against Title VII claims is not 

contemplated by IRCA itself.” Id. at 1190 n.9.
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sanction for “knowing” employment of unauthorized aliens cannot justify discriminatory precautionary measures.872

Finally, the dissent disagreed with the concurrence’s characterization 

of the company as an employer diligently attempting to fulfill its duty 

to not employ unauthorized labor, arguing that no court has held that 

discrepancies in a credit report (related to the use of a Social Security 

number) give an employer constructive knowledge that an employee is 

unauthorized.873

D. Worksite Enforcement

Worksite enforcement by Immigration and Customs Enforcement

(ICE) has increased dramatically in recent years. In fiscal year 2002, 

there were 485 administrative and 25 criminal worksite arrests. Those 

numbers had increased to 5,184 and 1,103, respectively, in fiscal year 

2008.874 In Aguilar v U.S. Immigration and Customs Enforcement,

875 a 

group of arrested and detained aliens brought suit alleging, among 

other claims, that ICE’s arrests and detentions infringed on the aliens’

right to counsel in violation of procedural due process and violated 

aliens’ substantive due process rights to family integrity.

On March 6, 2007, federal officers conducted a raid . . . and took

more than 300 rank-and-file employees into custody for civil 

immigration infractions. The ICE agents cast a wide net and 

paid little attention to the detainees’ individual or family circumstances. . . . After releasing dozens of employees determined 

either to be minors or to be legally residing in the United States, 

ICE transported the remaining detainees to Fort Devens (a 

holding facility in Ayer, Massachusetts). Citing a shortage of 

available bed space in Massachusetts, ICE then began transferring substantial numbers of aliens to faraway detention and removal operations centers (DROs). For example, on March 7, 90 

detainees were flown to a DRO in Harlingen, Texas, and the next 

day 116 more were flown to a DRO in El Paso, Texas.876

872. Id. at 1190.

873. Id. at 1190 n.10.

874. U.S. Immigration and Customs Enforcement, Worksite Enforcement Overview 

(Apr. 30, 2009), http://www.ice.gov/pi/news/factsheets/worksite.htm.

875. 510 F.3d 1 (1st Cir. 2007).

876. Id. at 6.
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Suit was brought in federal district court challenging various aspects of ICE’s conduct, and the district court granted the government’s 

motion to dismiss.877 In its decision, the First Circuit distinguished the 

claims between those “arising from” the removal process and those 

“with only a remote or attenuated connection to the removal of an 

alien.”878 “We thus read the words ‘arising from’ in section 1252(b)(9) 

to exclude claims that are independent of, or wholly collateral to, the 

removal process.”879 The court concluded that the right-to-counsel 

claims “arise from” the removal process, and, therefore, “must be administratively exhausted.”880 In contrast, the court held that the “substantive due process claims, which allege violations of the Fifth 

Amendment right of parents to make decisions as to the care, custody, 

and control of their children,”881 were “collateral to removal and, thus, 

outside the channeling mechanism of section 1252(b)(9).”882 After concluding that the district court had jurisdiction to hear the substantive 

due process claims, the First Circuit concluded that the claims were 

without merit. “[N]either the petitioners’ amended complaint nor their 

briefs offer any reason to believe that ICE’s actions were so ‘extreme, 

egregious, or outrageously offensive’ as to cross the ‘shock the conscience’ line.”883

E. State Assistance in Immigration Enforcement

As stated in Part III of this monograph, states have no immigration 

power,884 and local laws can be preempted by the federal government’s 

immigration power.885 “But the Court has never held that every state 

enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, 

whether latent or exercised.”886 States do, in fact, regulate in a number 

877. See id. at 7.

878. Id. at 10.

879. Id. at 11.

880. Id. at 13.

881. Id. at 18–19.

882. Id. at 19.

883. Id. at 22 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)).

884. Herrera-Inirio v. INS, 208 F.3d 299, 307 (1st Cir. 2000).

885. Id. at 307–08.

886. DeCanas v. Bica, 424 U.S. 351, 355 (1976).
part xii immigration law: a primer

150

of ways that affect aliens, discriminating between aliens and citizens or 

between classes of aliens.887 And, although a detailed look at preemption in the immigration context is beyond the scope of this monograph, it should be noted that several recent cases have addressed federal preemption of state and local laws affecting noncitizens.888

Additionally, § 287(g) of the INA contemplates written agreements 

between the Attorney General and states or their political subdivisions 

whereby trained state officials are authorized to aid immigration enforcement.889 An ordinance requiring landlords to verify immigration 

status does not “demonstrate the city’s intent to assist the government 

in this manner.”890

887. More than 240 immigration bills became law in 46 states in 2007. See National 

Conference of State Legislatures, Immigrant Policy Project: 2007 Enacted State Legislation 

Related to Immigrants and Immigration (Nov. 29, 2007). 

888. See, e.g., We Are America/Somos America, Coalition of Arizona v. Maricopa 

County Bd. of Sup’rs, 594 F. Supp. 2d 1104 (D. Ariz. Jan. 12, 2009) (not preempted); 

Chamber of Commerce of the U.S. v. Henry, No. CIV–08-109-C, 2008 U.S. Dist. LEXIS 

44168 (W.D. Okla. June 4, 2008) (preliminary injunction issued against state law that is 

likely preempted); Ariz. Contractors Ass’n, Inc. v. Candelaria, 534 F. Supp. 2d 1036 (D. 

Ariz. 2008) (not preempted); Villas at Parkside Partners v. City of Farmers Branch, 577 F. 

Supp. 2d 858 (N.D. Tex. 2008) (preempted); Lozano v. City of Hazelton, 496 F. Supp. 2d 

477 (M.D. Pa. 2007) (preempted).

Another development to watch in the field of federal preemption is the issue of EVerify, the federal system under which employers may check the work authorization 

status of employees and prospective employees against DHS and SSA databases. Five 

states have passed laws concerning the E-Verify system. The Ninth Circuit upheld the 

Arizona law, see Chicanos por la Causa Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009),

while a federal district court found the Illinois law was preempted, see United States v. 

Illinois, No. 07-3261, 2009 U.S. Dist. LEXIS 19533 (C.D. Ill. Mar. 11, 2009). 

889. 8 U.S.C. § 1357(g) (2006).

890. Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 873 

(N.D. Tex. 2008).
151

For Further Reference

Thomas Alexander Aleinikoff et al., Immigration and Citizenship: 

Process and Policy (4th ed. 1998)

Deborah Anker, Law of Asylum in the United States (3d ed. 1999)

Bender’s Immigration Bulletin

Austin T. Fragomen Jr., Careen Shannon, & Daniel Montalvo, Labor 

Certification Handbook (2008)

Georgetown Immigration Law Journal

Regina Germain, American Immigration Lawyers Association’s Asylum 

Primer (4th ed. 2005)

Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure (rev. ed. 2006) 

Sarah Ignatius & Elisabeth S. Stickney, Immigration Law & the Family 

(2004)

Immigration Briefings

Interpreter Releases

Mary E. Kramer, Immigration Consequences of Criminal Activity: A 

Guide to Representing Foreign-Born Defendants (American Immigration Lawyers Association, 2d ed. 2005)

Ira J. Kurzban, Immigration Law Sourcebook (American Immigration 

Lawyers Association, 11th ed. 2008)

Stephen H. Legomsky & Cristina M. Rodríguez, Immigration and 

Refugee Law and Policy (5th ed. 2009)

David A. Martin et al., Forced Migration: Law and Policy (2007)

Robert James McWhirter, The Criminal Lawyer’s Guide to Immigration Law (2006)

James A.R. Nafziger, Review of Visa Denials by Consular Offices, 66 

Wash. L. Rev. 1 (1991)

National Immigration Project of the National Lawyers Guild, Immigration Law and Crimes (2007/2008)
for further reference immigration law: a primer

152

New York Law School, Symposium, Seeking Review: Immigration Law 

and Federal Court Jurisdiction, 51 N.Y.L. Sch. L. Rev. 3–206 (2006–

2007)
153

Glossary

admission—Lawful entry of an alien after inspection and authorization by an immigration officer.An alien paroled into the United States has not been admitted.

aggravated felony—For a definition and lengthy list of applicable crimes, see 8 

U.S.C. § 1101(a)(43)(A)–(U) (2006). An alien convicted of an aggravated felony

is deportable and faces other procedural and substantive immigration consequences.

asylee—An alien present in the United States or at the border who demonstrates 

inability or unwillingness to return to his or her country of residence because of 

past “persecution or a well-founded fear of persecution on account of one of five 

statutory factors: race, religion, nationality, membership in a particular social 

group, or political opinion.” See INA § 101(a)(42).

BALCA—Board of Alien Labor Certification Appeals

beneficiary—The individual benefitting from an immigrant petition filed on behalf of that individual by a U.S. citizen, lawful permanent resident, or U.S. employer.

BIA—Board of Immigration Appeals

cancellation of removal—A congressional delegation of discretion to an immigration judge and the Board of Immigration Appeals to grant permanent residence

to statutorily eligible lawful permanent residents and non-LPRs despite the fact 

that the alien is removable.

CBP—United States Customs and Border Protection

conviction—“A formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where” the alien has been found guilty “or the 

alien has entered a plea of guilty or nolo contender or has admitted sufficient facts 

to warrant a finding of guilt, and the judge has ordered some form of punishment, 

penalty, or restraint on the alien’s liberty to be imposed.” See INA § 101(a)(48)(A).

deportation grounds—One of a number of grounds found in INA § 237(a) upon 

which an alien who has been inspected and admitted into the United States can be 

ordered removed.

employer sanctions—Civil or criminal penalties imposed on employers who hire 

unauthorized workers or who fail to properly keep records of all hires.

EOIR—Executive Office for Immigration Review; part of the Department of Justice, includes immigration judges and the BIA.
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154

EWI—entered without inspection

ICE—Immigrations and Customs Enforcement

IJ—immigration judge

INA—Immigration and Nationality Act

inadmissibility grounds—One of a number of grounds found in INA § 212(a) on 

which an alien who is at a port of entry or who is in the United States without being 

inspected and admitted can be ordered removed.

IRCA—Immigration Reform and Control Act of 1986

labor certification—Issued by the Department of Labor, this requires those who 

would employ certain categories of alien labor to show that there are no authorized 

persons in the United States willing and able to do the job, and that the employer 

will pay the prevailing wage; it is designed to protect U.S. wages and working conditions.

LPR—lawful permanent resident; see permanent resident

NACARA—Nicaraguan Adjustment and Central American Relief Act

nonimmigrant—An alien granted temporary admission into the United States. See 

INA § 101(a)(15) for a list of nonimmigrant categories and qualifications.

overstay—An alien who has exceeded the stay authorized upon entry into the country.

parole—An act by which a potentially inadmissible alien is allowed to enter the 

United States for humanitarian reasons or for some benefit to the United States. 

Parolees have not been admitted to the United States.

permanent resident—A noncitizen with permission to live in the United States 

permanently who can, after the requisite number of years and meeting other requirements, apply for citizenship. Permanent residents are commonly referred to 

as Green Card holders.

petitioner—A U.S. citizen, lawful permanent resident, or U.S. employer who petitions the U.S. government for an immigration benefit on behalf of an alien.

priority date—The date the first relevant document is filed in the immigrant visa 

application process. Since some immigrant categories have annual numerical limitations, the priority date establishes the alien’s position in line.

refugee—An alien who is neither in the United States nor at the border who meets

the definition of refugee found at INA § 101(a)(42); see asylee.
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155

removal proceeding—The administrative adjudicatory proceeding whereby the 

immigration judge determines whether an alien is inadmissible or deportable and 

whether some form of relief from inadmissibility or deportability ought to be 

granted.

SAW—Special Agricultural Worker

USCIS—United States Citizenship and Immigration Services

visa—A document issued by a Department of State consular officer at a U.S. embassy or consulate. The visa entitles the alien to travel to a United States port of 

entry and present himself or herself for inspection by a CBP officer.

voluntary departure—A form of relief from removal in which the alien is given a 

certain amount of time to depart the United States and does not face other consequences—including future inadmissibility—resulting from a removal order.

waiver—Several provisions in the Immigration and Nationality Act allow an alien 

to petition the government for a waiver of a ground of inadmissibility or deportability. 
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157

Appendix

INA § 242, 8 U.S.C. § 1252 (2006)

§ 1252. Judicial review of orders of removal

(a) Applicable provisions 

(1) General orders of removal 

Judicial review of a final order of removal (other than an order of 

removal without a hearing pursuant to section 1225(b)(1) of this title) 

is governed only by chapter 158 of title 28, except as provided in subsection (b) of this section and except that the court may not order 

the taking of additional evidence under section 2347(c) of such title. 

(2) Matters not subject to judicial review 

(A) Review relating to section 1225(b)(1) 

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas 

corpus provision, and sections 1361 and 1651 of such title, no court 

shall have jurisdiction to review—

(i) except as provided in subsection (e) of this section, any individual determination or to entertain any other cause or claim 

arising from or relating to the implementation or operation of an 

order of removal pursuant to section 1225(b)(1) of this title, 

(ii) except as provided in subsection (e) of this section, a decision by the Attorney General to invoke the provisions of such 

section, 

(iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this 

title, or 

(iv) except as provided in subsection (e) of this section, procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title. 

(B) Denials of discretionary relief

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas 

corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether 
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158

the judgment, decision, or action is made in removal proceedings, 

no court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 

1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or 

(ii) any other decision or action of the Attorney General or the 

Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney 

General or the Secretary of Homeland Security, other than the 

granting of relief under section 1158(a) of this title. 

(C) Orders against criminal aliens 

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas 

corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is 

removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of 

this title, or any offense covered by section 1227(a)(2)(A)(ii) of this 

title for which both predicate offenses are, without regard to their 

date of commission, otherwise covered by section 1227(a)(2)(A)(i) 

of this title. 

(D) Judicial review of certain legal claims 

Nothing in subparagraph (B) or (C), or in any other provision of 

this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review 

filed with an appropriate court of appeals in accordance with this 

section. 

(3) Treatment of certain decisions 

No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in 

section 1229a(c)(1)(B) of this title. 

(4) Claims under the United Nations Convention 

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus 

provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with 
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159

this section shall be the sole and exclusive means for judicial review 

of any cause or claim under the United Nations Convention Against 

Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e) of this section. 

(5) Exclusive means of review 

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus 

provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with 

this section shall be the sole and exclusive means for judicial review 

of an order of removal entered or issued under any provision of this 

chapter, except as provided in subsection (e) of this section. For 

purposes of this chapter, in every provision that limits or eliminates 

judicial review or jurisdiction to review, the terms “judicial review” 

and “jurisdiction to review” include habeas corpus review pursuant 

to section 2241 of title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other 

provision of law (statutory or nonstatutory). 

(b) Requirements for review of orders of removal 

With respect to review of an order of removal under subsection 

(a)(1) of this section, the following requirements apply: 

(1) Deadline 

The petition for review must be filed not later than 30 days after the 

date of the final order of removal. 

(2) Venue and forms 

The petition for review shall be filed with the court of appeals for 

the judicial circuit in which the immigration judge completed the 

proceedings. The record and briefs do not have to be printed. The 

court of appeals shall review the proceeding on a typewritten record 

and on typewritten briefs. 

(3) Service 

(A) In general

The respondent is the Attorney General. The petition shall be 

served on the Attorney General and on the officer or employee of 

the Service in charge of the Service district in which the final order 

of removal under section 1229a of this title was entered. 
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160

(B) Stay of order 

Service of the petition on the officer or employee does not stay 

the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise. 

(C) Alien’s brief 

The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on 

which the administrative record is available, and may serve and file 

a reply brief not later than 14 days after service of the brief of the 

Attorney General, and the court may not extend these deadlines 

except upon motion for good cause shown. If an alien fails to file a 

brief within the time provided in this paragraph, the court shall 

dismiss the appeal unless a manifest injustice would result. 

(4) Scope and standard for review 

Except as provided in paragraph (5)(B)—

(A) the court of appeals shall decide the petition only on the 

administrative record on which the order of removal is based, 

(B) the administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the 

contrary, 

(C) a decision that an alien is not eligible for admission to the 

United States is conclusive unless manifestly contrary to law, and 

(D) the Attorney General’s discretionary judgment whether to 

grant relief under section 1158(a) of this title shall be conclusive 

unless manifestly contrary to the law and an abuse of discretion. 

No court shall reverse a determination made by a trier of fact with 

respect to the availability of corroborating evidence, as described in 

section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, 

unless the court finds, pursuant to subsection (b)(4)(B) of this section, that a reasonable trier of fact is compelled to conclude that 

such corroborating evidence is unavailable. 

(5) Treatment of nationality claims 

(A) Court determination if no issue of fact 

If the petitioner claims to be a national of the United States and 

the court of appeals finds from the pleadings and affidavits that no 

genuine issue of material fact about the petitioner’s nationality is 

presented, the court shall decide the nationality claim. 
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161

(B) Transfer if issue of fact 

If the petitioner claims to be a national of the United States and 

the court of appeals finds that a genuine issue of material fact 

about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court of the United States for the 

judicial district in which the petitioner resides for a new hearing on 

the nationality claim and a decision on that claim as if an action 

had been brought in the district court under section 2201 of title 

28. 

(C) Limitation on determination 

The petitioner may have such nationality claim decided only as 

provided in this paragraph. 

(6) Consolidation with review of motions to reopen or reconsider 

When a petitioner seeks review of an order under this section, any 

review sought of a motion to reopen or reconsider the order shall be 

consolidated with the review of the order. 

(7) Challenge to validity of orders in certain criminal proceedings

(A) In general 

If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating 

section 1253(a) of this title may challenge the validity of the order 

in the criminal proceeding only by filing a separate motion before 

trial. The district court, without a jury, shall decide the motion before trial. 

(B) Claims of United States nationality

If the defendant claims in the motion to be a national of the 

United States and the district court finds that—

(i) no genuine issue of material fact about the defendant’s nationality is presented, the court shall decide the motion only on 

the administrative record on which the removal order is based

and the administrative findings of fact are conclusive if supported 

by reasonable, substantial, and probative evidence on the record 

considered as a whole; or 

(ii) a genuine issue of material fact about the defendant’s nationality is presented, the court shall hold a new hearing on the 

nationality claim and decide that claim as if an action had been 

brought under section 2201 of title 28. 
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162

The defendant may have such nationality claim decided only as 

provided in this subparagraph. 

(C) Consequence of invalidation 

If the district court rules that the removal order is invalid, the 

court shall dismiss the indictment for violation of section 1253(a) 

of this title. The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 

days after the date of the dismissal. 

(D) Limitation on filing petitions for review 

The defendant in a criminal proceeding under section 1253(a) of 

this title may not file a petition for review under subsection (a) of 

this section during the criminal proceeding. 

(8) Construction

This subsection—

(A) does not prevent the Attorney General, after a final order of 

removal has been issued, from detaining the alien under section 

1231(a) of this title; 

(B) does not relieve the alien from complying with section 

1231(a)(4) of this title and section 1253(g) of this title; and 

(C) does not require the Attorney General to defer removal of 

the alien. 

(9) Consolidation of questions for judicial review

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien 

from the United States under this subchapter shall be available only 

in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus 

provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or 

such questions of law or fact. 

(c) Requirements for petition 

A petition for review or for habeas corpus of an order of removal—

(1) shall attach a copy of such order, and 
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163

(2) shall state whether a court has upheld the validity of the order, 

and, if so, shall state the name of the court, the date of the court’s 

ruling, and the kind of proceeding. 

(d) Review of final orders 

A court may review a final order of removal only if—

(1) the alien has exhausted all administrative remedies available to 

the alien as of right, and 

(2) another court has not decided the validity of the order, unless 

the reviewing court finds that the petition presents grounds that 

could not have been presented in the prior judicial proceeding or 

that the remedy provided by the prior proceeding was inadequate or 

ineffective to test the validity of the order. 

(e) Judicial review of orders under section 1225(b)(1) 

(1) Limitations on relief

Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no 

court may—

(A) enter declaratory, injunctive, or other equitable relief in any 

action pertaining to an order to exclude an alien in accordance 

with section 1225(b)(1) of this title except as specifically authorized 

in a subsequent paragraph of this subsection, or 

(B) certify a class under Rule 23 of the Federal Rules of Civil 

Procedure in any action for which judicial review is authorized 

under a subsequent paragraph of this subsection. 

(2) Habeas corpus proceedings

Judicial review of any determination made under section 

1225(b)(1) of this title is available in habeas corpus proceedings, but 

shall be limited to determinations of—

(A) whether the petitioner is an alien, 

(B) whether the petitioner was ordered removed under such section, and 

(C) whether the petitioner can prove by a preponderance of the 

evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 

1157 of this title, or has been granted asylum under section 1158 of 

this title, such status not having been terminated, and is entitled to 
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164

such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title. 

(3) Challenges on validity of the system

(A) In general

Judicial review of determinations under section 1225(b) of this 

title and its implementation is available in an action instituted in 

the United States District Court for the District of Columbia, but 

shall be limited to determinations of—

(i) whether such section, or any regulation issued to implement 

such section, is constitutional; or 

(ii) whether such a regulation, or a written policy directive, 

written policy guideline, or written procedure issued by or under 

the authority of the Attorney General to implement such section, 

is not consistent with applicable provisions of this subchapter or 

is otherwise in violation of law. 

(B) Deadlines for bringing actions 

Any action instituted under this paragraph must be filed no later 

than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of 

subparagraph (A) is first implemented. 

(C) Notice of appeal 

A notice of appeal of an order issued by the District Court under 

this paragraph may be filed not later than 30 days after the date of 

issuance of such order. 

(D) Expeditious consideration of cases

It shall be the duty of the District Court, the Court of Appeals, 

and the Supreme Court of the United States to advance on the 

docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph. 

(4) Decision

In any case where the court determines that the petitioner—

(A) is an alien who was not ordered removed under section 

1225(b)(1) of this title, or 

(B) has demonstrated by a preponderance of the evidence that 

the alien is an alien lawfully admitted for permanent residence, has 

been admitted as a refugee under section 1157 of this title, or has 

been granted asylum under section 1158 of this title, the court may 
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165

order no remedy or relief other than to require that the petitioner 

be provided a hearing in accordance with section 1229a of this title. 

Any alien who is provided a hearing under section 1229a of this title pursuant to this paragraph may thereafter obtain judicial review 

of any resulting final order of removal pursuant to subsection 

(a)(1) of this section. 

(5) Scope of inquiry 

In determining whether an alien has been ordered removed under 

section 1225(b)(1) of this title, the court’s inquiry shall be limited to 

whether such an order in fact was issued and whether it relates to the 

petitioner. There shall be no review of whether the alien is actually 

inadmissible or entitled to any relief from removal. 

(f) Limit on injunctive relief 

(1) In general 

Regardless of the nature of the action or claim or of the identity of 

the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as 

amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such 

provisions to an individual alien against whom proceedings under 

such part have been initiated. 

(2) Particular cases 

Notwithstanding any other provision of law, no court shall enjoin 

the removal of any alien pursuant to a final order under this section 

unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. 

(g) Exclusive jurisdiction 

Except as provided in this section and notwithstanding any other 

provision of law (statutory or nonstatutory), including section 2241 of 

title 28, or any other habeas corpus provision, and sections 1361 and 

1651 of such title, no court shall have jurisdiction to hear any cause or 

claim by or on behalf of any alien arising from the decision or action 

by the Attorney General to commence proceedings, adjudicate cases, 

or execute removal orders against any alien under this chapter. 
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167

Table of Cases 

Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), nn.382, 441, 443, 445–48

Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005), n.109

Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), nn.572–74, 583

Acosta, Matter of, 19 I. & N. Dec. 211 (BIA 1985), nn.674, 719–20, 724

Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004), nn.653–54

Adetiba, Matter of, 20 I. & N. Dec. 506 (BIA 1992), n.447

Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006), n.501

Aguilar v. U.S. Immigration and Customs Enforcement, 510 F.3d 1 (1st Cir. 

2007), nn.875–83

Ahmed v. Gonzales, 467 F.3d 669 (7th Cir. 2006), n.689

Akinwande v. Ashcroft, 380 F.3d 517 (1st Cir. 2004), nn.548–49

Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006), nn.625–26

Alimi v. Ashcroft, 391 F.3d 888 (7th Cir. 2004), n.610

Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), n.477

Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004), n.509

Amador-Palomares v. Ashcroft, 382 F.3d 864 (8th Cir. 2004), n.543

Amadou v. INS, 226 F.3d 724 (6th Cir. 2000), n.206

Ambach v. Norwick, 441 U.S. 68 (1979), nn.160, 164

A-M-E- & J-G-U-, Matter of, 24 I. & N. Dec. 69 (BIA 2007), n.740

American Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009), n.196

American Immigration Lawyers Association v. Reno, 18 F. Supp. 2d 38 (D.D.C. 

1998), nn.413–14

American-Arab Anti-Discrimination Committee v. Ashcroft, 272 F. Supp. 2d 650 

(E.D. Mich. 2003), n.416

Amilcar-Orellana v. Mukasey, 551 F.3d 86 (1st Cir. 2008), n.744

Ana Intern, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004), nn.84–85

Angamarca v. Gonzales, 415 F.3d 897 (8th Cir. 2005), n.562

Angulo-Dominguez v. Ashcroft, 290 F.3d 1147 (9th Cir. 2002), n.596

Apouviepseakoda v. Gonzales, 475 F.3d 881 (7th Cir. 2007), n.627

Aquino-Encarnacion v. INS, 296 F.3d 56 (1st Cir. 2002), n.440

Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005), n.526

Arizona Contractors Association, Inc. v. Candelaria, 534 F. Supp. 2d 1036 (D. Ariz. 

2008), n.888

A-T-, Matter of, 24 I. & N. Dec. 617 (AG 2008), n.756

Babaisakov, In re, 24 I. & N. Dec. 306 (BIA 2007), nn.366–70

Bace v. Ashcroft, 352 F.3d 1133 (7th Cir. 2003), n.677
table of cases immigration law: a primer

168

Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008), n.519

Barnaby v. Reno, 142 F. Supp. 2d 277 (D. Conn. 2001), n.513

Beltran-Resendez v. INS, 207 F.3d 284 (5th Cir. 2000), n.546

Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005), n.633

Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006), n.475

Bernal v. Fainter, 467 U.S. 216 (1984), nn.153, 157

Berte v. Ashcroft, 396 F.3d 993 (8th Cir. 2005), n.692

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), nn.359, 569–71, 578–82

Blanco de Belbruno v. Ashcroft, 362 F.3d 272 (4th Cir. 2004), n.93

Bocova v. Gonzales, 412 F.3d 257 (1st Cir. 2005), nn.597, 610

Bolvito v. Mukasey, 527 F.3d 428 (5th Cir. 2008), n.589

Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), n.410

Boumediene v. Bush, 128 S. Ct. 2229 (2008), n.208

Bridges v. Wixon, 326 U.S. 135 (1945), n.620

Brito v. Mukasey, 521 F.3d 160 (2d Cir. 2008), n.590

Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004), nn.836, 840

Brumme v. INS, 275 F.3d 443 (5th Cir. 2001), n.416

Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994), n.267

C-A-, In re, 23 I. & N. Dec. 951 (BIA 2006), n.741

Cabell v. Chavez-Salido, 454 U.S. 432 (1982), nn.159, 162

Cao He Lin v. U.S. Department of Justice, 428 F.3d 391 (2d Cir. 2005), nn.648–49

Carachuri, In re, 24 I. & N. Dec. 382 (BIA 2007), n.478

Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), n.476

Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007), n.583

Carrillo-Gonzalez v. INS, 353 F.3d 1077 (9th Cir. 2003), n.295

Carter v. INS, 90 F.3d 14 (1st Cir. 1996), n.378

Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), n.730

Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190 (11th Cir. 2006), nn.733, 

742

Cervantes v. Perryman, 954 F. Supp. 1257 (N.D. Ill. 1997), n.633

Cervantes-Ascencio v. INS, 326 F.3d 83 (2d Cir. 2003), n.605

Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008), n.592

Cham v. Attorney General of the United States, 445 F.3d 683 (3d Cir. 2006), n.206

Chamber of Commerce of the United States v. Henry, No. CIV-08-109-C, 2008 

U.S. Dist. LEXIS 44168 (W.D. Okla. June 4, 2008), n.888

Chang v. Glynn County School District, 457 F. Supp. 2d 1378 (S.D. Ga. 2006), 

nn.163, 165

Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004), n.108

Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006), nn.676, 695
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Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 

(1984), nn.37, 111

Chicanos por la Causa Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), n.888

The Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581 

(1889), nn.140, 195

Cho v. Gonzales, 404 F.3d 96 (1st Cir. 2005), nn.242–44

Chowdhury v. I.N.S., 249 F.3d 970 (9th Cir. 2001), nn.495, 497–99

Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), n.510

Chukwu v. Attorney General of the United States, 484 F.3d 185 (3d Cir. 2007), 

nn.811–13

City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999), n.177

Clark v. Martinez, 543 U.S. 371 (2005), n.216

Coraggioso v. Ashcroft, 355 F.3d 730 (3d Cir. 2004), n.292

Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), n.380

C-V-T-, In re, 22 I. & N. Dec. 7 (BIA 1998), nn.528–29

Dada v. Mukasey, 128 S. Ct. 2307 (2008), nn.327, 328, 612–17

Damon v. Ashcroft, 360 F.3d 1084 (9th Cir. 2004), n.244

De Brenner v. Ashcroft, 388 F.3d 629 (8th Cir. 2004), nn.701–05

De La Vega v. Gonzales, 436 F.3d 141 (2d Cir. 2006), nn.77, 519

DeCanas v. Bica, 424 U.S. 351 (1976), nn.145, 886

Demore v. Kim, 538 U.S. 510 (2003), nn.209–10

DePoutot v. Raffaelly, 424 F.3d 112 (1st Cir. 2005), n.883

Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004), n.609

Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003), n.93

Diallo v. Gonzales, 445 F.3d 624 (2d Cir. 2006), n.816

Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009), nn.743–44

D-V-, Applicant, In re, 21 I. & N. Dec. 77 (BIA 1993), n.745

Dwomoh v. Sava, 696 F. Supp. 970 (S.D.N.Y. 1988), n.718

E-A-G-, Matter of, 24 I. & N. Dec. 591 (BIA 2007), n.739

Edimo-Doualla v. Gonzales, 464 F.3d 276 (2d Cir. 2006), n.810

Elias v. Gonzales, 490 F.3d 444 (6th Cir. 2007), n.656

El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004), n.81

Elysee v. Gonzales, 437 F.3d 221 (1st Cir. 2006), n.75

Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir. 2006), n.64

Examining Board v. Flores de Otero, 426 U.S. 572 (1976), n.152

Fakalata, Matter of, 18 I. & N. Dec. 213 (BIA 1982), nn.251, 255–56

Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), nn.729, 748–51

Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. 2008), n.478

Fiallo v. Bell, 430 U.S. 787 (1977), nn.5–6, 138, 191, 197, 247
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Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), n.460

Floroiu v. Gonzales, 481 F.3d 970 (7th Cir. 2007), n.206

Foley v. Connelie, 435 U.S. 291 (1978), nn.158, 161

Fong, Matter of, 17 I. & N. Dec. 212 (BIA 1980), n.249

Fong Yue Ting v. United States, 149 U.S. 698 (1893), nn.142, 186, 195, 198, 621

Francis v. Gonzales, 442 F.3d 131 (2d Cir. 2006), nn.429–30, 594, 650–52

Francis v. INS, 532 F.2d 268 (2d Cir. 1976), n.568

Franklin, Matter of, 20 I. & N. Dec. 867 (BIA 1994), n.358

Galvan v. Press, 347 U.S. 522 (1954), n.196

Gao v. Board of Immigration Appeals, 482 F.3d 122 (2d Cir. 2007), nn.798–806

Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006), nn.752–53

Garcia v. Attorney General of the United States, 329 F.3d 1217 (11th Cir. 2003), 

n.373

Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004), n.687

Garcia-Padron v. Holder, 558 F.3d 196 (2d Cir. 2009), nn.564, 565

Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), nn.110, 123, 128–30

Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007), nn.79, 82, 83

Gishta v. Gonzales, 404 F.3d 972 (6th Cir. 2005), n.207

Gomes v. Gonzales, 473 F.3d 746 (7th Cir. 2007), nn.782, 787

Gomez-Lopez v. Ashcroft, 393 F.3d 882 (9th Cir. 2005), n.76

Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007), 

n.113

Gonzales v. Thomas, 547 U.S. 183 (2006), n.131

Gonzalez v. O’Connell, 355 F.3d 1010 (7th Cir. 2004), n.221

Gonzalez Recinas, In re, 23 I. & N. Dec. 467 (BIA 2002), nn.558–59, 563

Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004), nn.554–56

Gonzalez-Sandoval v. U.S. INS, 910 F.2d 614 (9th Cir. 1990), nn.449–51

Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir. 2007), nn.470–74

Grageda v. INS, 12 F.3d 919 (9th Cir. 1993), n.374

Graham v. Richardson, 403 U.S. 365 (1971), nn.7–8, 146–48, 166–67, 169–70, 178

Griffiths, In re, 413 U.S. 717 (1973), n.151

Grimson v. INS, 934 F. Supp. 965 (N.D. Ill. 1996), nn.271–75

Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. 2006), n.127

Guyadin v. Gonzales, 449 F.3d 465 (2d Cir. 2006), n.99

Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989), n.280

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), nn.180–82

Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003), nn.106–07

Harisiades v. Shaughnessy, 342 U.S. 580 (1952), nn.188–89, 618–19

Hashish v. Gonzales, 442 F.3d 572 (7th Cir. 2006), nn.603–04
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Hassan v. Chertoff, 543 F.3d 564 (9th Cir. 2008), n.519

Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003), n.78

Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008), nn.114–15, 117

Hernandez–Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005), nn.432–33, 

641–45

Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003), n.377

Hernandez-Montiel v. INS 225 F.3d 1084 (9th Cir. 2000), nn.725–26

Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000), nn.143–44, 392, 884–85

Holy Virgin Protection Cathedral v. Chertoff, 499 F.3d 658 (7th Cir. 2007), n.81

Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005), n.522

Hussain v. Mukasey, 518 F.3d 534 (7th Cir. 2008), n.344

Ikama-Obambi v. Gonzales, 470 F.3d 720 (7th Cir. 2006), nn.814–15

Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. 2003), n.550

Ilchuk v. Attorney General of the United States, 434 F.3d 618 (3d Cir. 2006), n.507

Information Industries, Inc., Matter of, 88 INA 82 (BALCA 1989), n.284

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), nn.110, 126

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), nn.624, 777–78

INS v. Elias-Zacarias, 502 U.S. 478 (1992), nn.693–94

INS v. Orlando Ventura, 537 U.S. 12 (2002), n.131

INS v. St. Cyr, 533 U.S. 289 (2001), nn.48–50, 416, 530, 566, 624, 823, 824, 837

INS v. Stevic, 467 U.S. 407 (1984), nn.775–76

International Longshoremen’s & Warehousemen’s Union v. Meese, 891 F.2d 1374 

(9th Cir. 1989), nn.229–30

Iouri v. Ashcroft, 487 F.3d 76 (2d Cir. 2007), n.326

Ishak v. Gonzales, 422 F.3d 22 (1st Cir. 2005), n.59

Izatula, Matter of, 20 I. & N. Dec. 149 (BIA 1990), nn.716–18

Izedonmwen v. INS, 37 F.3d 416 (8th Cir. 1994), n.384

Jaafar v. INS, 77 F. Supp. 2d 360 (W.D.N.Y. 1999), n.505

Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005), n.512

Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006), n.80

Jimenez-Santillano, Matter of, 212 I. & N. Dec. 567 (BIA 1996), n.575

Kaho v. Ilchert, 765 F.2d 877 (9th Cir. 1985), nn.253–54, 257–60

Kasinga, In re, 21 I. & N. Dec. 357 (BIA 1996), nn.754–55

Kay v. Reno, 94 F. Supp. 2d 546 (M.D. Pa. 2000), n.142

Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002), n.494

Khan v. Attorney General of the United States, 448 F.3d 226 (3d Cir. 2006), n.207

Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. 2007), nn.490, 492–93

Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008), n.670
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Kibinda v. Attorney General of the United States, 477 F.3d 113 (3d Cir. 2007), 

nn.675, 688

Kirk v. New York State Department of Education, 562 F. Supp. 2d 405 (W.D.N.Y. 

2008), n.154

Kiyemba v. Obama (Kiyemba I), 555 F.3d 1022 (D.C. Cir. 2009), n.217

Kleindienst v. Mandel, 408 U.S. 753 (1972), n.196

Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004), n.360

Kosak v. Devine, 439 F. Supp. 2d 410 (E.D. Pa. 2006), n.250

Koudriachova v. Gonzales, 490 F.3d 255 (2d Cir. 2007), n.728

Koussan v. Holder, 556 F.3d 403 (6th Cir. 2009), nn.567, 575–77

Koval v. Gonzales, 418 F.3d 798 (7th Cir. 2005), nn.678, 683

Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), n.86

Kungys v. United States, 485 U.S. 759 (1988), n.545

Kwan v. Donovan, 777 F.2d 479 (9th Cir. 1985), nn.285–87

Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. 2004), nn.536–37

Landon v. Plasencia, 459 U.S. 21 (1982), nn.200–202

Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005), n.489

League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th 

Cir. 2007), nn.154–55

LeClerc v. Webb, 444 F.3d 428 (5th Cir. 2006), n.156

LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005), nn.154–55

Lee v. Mukasey, 527 F.3d 1103 (10th Cir. 2008), nn.222–23

Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), nn.268–70

Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), n.670

Leocal v. Ashcroft, 543 U.S. 1 (2004), nn.479, 482–88

Li, Matter of, 20 I. & N. Dec. 700 (BIA 1993), n.250

Lin v. U.S. Department of Justice, 459 F.3d 255 (2d Cir. 2006), n.626

Lin v. U.S. Department of Justice, 416 F.3d 184 (2d Cir. 2005), nn.124–25

Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007), n.787

Lopez v. Gonzales, 549 U.S. 47 (2006), nn.460, 462, 464–69

Lopez-Alvarado v. Ashcroft, 381 F.3d 847 (9th Cir. 2004), nn.76, 540–41

Lopez-Meza, In re, 22 I. & N. Dec. 1188 (BIA 1999), n.377

Lopez-Reyes v. INS, 79 F.3d 908 (1996), n.817

Lozada, Matter of, 19 I. & N. Dec. 637 (BIA 1988), n.630

Lozano v. City of Hazelton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), n.888

Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), n.395

L-V-C-, In re, 22 I. & N. Dec. 594 (BIA 1999), nn.361–63

Lwin v. INS, 144 F.3d 505 (7th Cir. 1998), n.731

Macotaj v. Gonzales, 424 F.3d 464 (6th Cir. 2005), n.609
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Mahesh Nenumal Tejwani, In re, 24 I. & N. Dec. 97 (BIA 2007), nn.364–65

Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006), n.425

Mansour v. Ashcroft, 390 F.3d 667 (9th Cir. 2004), n.681

Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), n.585

Masih v. Mukasey, 536 F.3d 370 (5th Cir. 2008), n.591

Mathews v. Diaz, 426 U.S. 67 (1976), nn.174, 176–77, 179, 190

Mathews v. Eldridge, 459 U.S. 21 (1982), nn.204–05

McAllister v. Attorney General, 444 F.3d 178 (3d Cir. 2006), n.337

Mester Manufacturing Co. v. INS, 879 F.2d 561 (9th Cir. 1989), n.850

Miljkovic v. Ashcroft, 376 F.3d 754 (7th Cir. 2004), nn.713–15

Mirabal-Balon v. Esperdy, 188 F. Supp. 317 (S.D.N.Y. 1960), n.543

Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), n.124

Mogharrabi, Matter of, 19 I. & N. Dec. 439 (BIA 1987), n.779

Mohamed v. Gonzales, 477 F.3d 522 (8th Cir. 2007), nn.65–67

Mohamed v. Gonzales, 436 F.3d 79 (2d Cir. 2006), nn.293–95

Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), n.628

Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2002), n.561

Mourillon, Matter of, 18 I. & N. Dec. 122 (BIA 1981), n.252

Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980), n.182

Mow Sun Wong v. Hampton, 435 F. Supp. 37 (N.D. Cal. 1977), n.182

Mullai v. Ashcroft, 385 F.3d 635 (6th Cir. 2004), n.606

Murgia-Melendrez v. U.S. Immigration & Naturalization Service, 407 F.2d 207 

(9th Cir. 1969), n.187

Murphy v. INS, 54 F.3d 605 (9th Cir. 1995), n.634

Musabelliu v. Gonzales, 442 F.3d 991 (7th Cir. 2006), n.690

Mwongera v. INS, 187 F.3d 323 (3d Cir. 1999), nn.227–28

Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir. 2009), n.566

Naeem v. Gonzales, 469 F.3d 33 (1st Cir. 2006), nn.606–08

Nakibuka v. Gonzales, 421 F.3d 473 (7th Cir. 2005), n.686

National Cable and Telecommunications Association v. Brand X Internet Services, 

545 U.S. 967 (2005), nn.112–13, 121

Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), n.363

Negusie v. Holder, 129 S. Ct. 1159 (2009), nn.664, 665

New El Rey Sausage Co., Inc. v. INS, 925 F.2d 1153 (9th Cir. 1991), n.851

Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004), nn.325, 611

Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004), nn.101–04, 679

Nguyen v. INS, 533 U.S. 53 (2001), n.247

Nguyen v. Reno, 211 F.3d 692 (1st Cir. 2000), n.371

Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005), nn.732, 746, 757–59
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Nijhawan v. Holder, 129 S. Ct. 2294 (2009), n.460

Nken v. Holder, 129 S. Ct. 1749 (2009), n.658

Nyonzele v. INS, 83 F.3d 975 (8th Cir. 1996), n.244

Nyquist v. Mauclet, 432 U.S. 1 (1977), n.149

Obale v. Attorney General of the United States, 453 F.3d 151 (3d Cir. 2006), n.610

Obleshchenko v. Ashcroft, 392 F.3d 970 (8th Cir. 2004), nn.628, 629

Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909), n.191

Olquin-Rufino, In re, 23 I. & N. Dec. 896 (BIA 2006), n.376

Omagah v. Ashcroft, 288 F.3d 254 (5th Cir. 2002), n.383

Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002), n.734

Onyeme v. U.S. INS, 146 F.3d 227 (4th Cir. 1998), n.246

Opere v. INS, 267 F.3d 10 (1st Cir. 2001), n.545

Ouda v. INS, 324 F.3d 445 (6th Cir. 2003), n.685

Padilla v. Kentucky, 129 S. Ct. 1317 (2009), n.835

Padilla-Padilla v. Gonzales, 463 F.3d 972 (9th Cir. 2006), n.138

Papageorgiou v. Gonzales, 413 F.3d 356 (3d Cir. 2005), n.61

Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985), n.551

Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005), nn.459, 500

Partyka v. Attorney General of the United States, 417 F.3d 408 (3d Cir. 2005), 

n.372

Pasha v. Gonzales, 433 F.3d 530 (7th Cir. 2005), n.109

Pede v. Gonzales, 442 F.3d 570 (7th Cir. 2006), n.633

People v. Pozo, 746 P.2d 523 (Colo. 1987), n.841

Pierre v. Attorney General, 528 F.3d 180 (3d Cir. 2008), n.671

Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005), n.396

Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005), n.503

Qassim v. Bush, 407 F. Supp. 2d 198 (D.D.C. 2005), n.217

Quomsieh v. Gonzales, 479 F.3d 602 (8th Cir. 2007), n.680

R-A-, Matter of, 24 I. & N. Dec. 629 (AG 2008), nn.760–63

Ramirez v. Ashcroft, 361 F. Supp. 2d 650 (S.D. Tex. 2005), n.504

Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006), n.60

Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008), n.593

Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. 2002), n.506

Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008), n.475

Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006), n.206

Reno v. Flores, 507 U.S. 292 (1993), n.623

Resendiz, In re, 19 P.3d 1171 (Cal. 2001), nn.841–47

Resendiz-Alcaraz v. U.S. Attorney General, 383 F.3d 1262 (11th Cir. 2004), n.391
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Reyes-Morales v. Gonzales, 435 F.3d 937 (8th Cir. 2006), n.360

Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005), n.508

Rife v. Ashcroft, 374 F.3d 606 (8th Cir. 2004), nn.326, 609, 735

Rivera v. U.S. Attorney General, 487 F.3d 815 (11th Cir. 2007), n.696

Rodrigues-Nascimento v. Gonzales, 485 F.3d 60 (1st Cir. 2007), n.72

Rodriguez Galicia v. Gonzales, 422 F.3d 529 (7th Cir. 2005), n.627

Rodriguez-Gutierrez v. INS, 59 F.3d 504 (5th Cir. 1995), n.547

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120 (1st Cir. 2005), n.691

Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003), n.640

Roldan-Santoyo, In re, 22 I. & N. Dec. 512 (BIA 1999), n.393

Rosas, Matter of, 23 I. & N. Dec. 448 (BIA 2002), n.457

Rosas-Ramirez, In re, 22 I. & N. Dec. 616 (BIA 1999), n.442

Rosenberg v. Fleuti, 374 U.S. 449 (1963), n.425

Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007), n.128

Rotimi v. Holder, 577 F.3d 133 (2d Cir. 2009), n.585

R-S-J-, In re, 22 I. & N. Dec. 863 (BIA 1999), n.544

Ruzi v. Gonzales, 441 F.3d 611 (8th Cir. 2006), nn.697–700

Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999), n.140

Safaie v. INS, 25 F.3d 636 (8th Cir. 1994), n.735

Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. 2005), nn.389, 394

Salazar-Regino, In re, 23 I. & N. Dec. 223 (BIA 2002), n.393

Samuels v. Chertoff, 550 F.3d 252 (2d Cir. 2008), n.585

Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986), nn.721–23, 747

Sandoval-Loffredo v. Gonzales, 414 F.3d 892 (8th Cir. 2005), nn.423–24

Santana-Albarran v. Ashcroft, 393 F.3d 699 (6th Cir. 2005), nn.538–39

Santin Ramos v. U.S. Civil Service Commission, 430 F. Supp. 422 (D.P.R. 1977), 

n.182

Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008), n.742

Savchuck v. Mukasey, 518 F.3d 119 (2d Cir. 2008), n.742

Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009), n.742

Scheerer v. U.S. Attorney General, 445 F.3d 1311 (11th Cir. 2006), nn.706–12

S-E-G-, Matter of, 24 I. & N. Dec. 579 (BIA 2008), nn.736–39

Shapiro v. Thompson, 394 U.S. 618 (1969), n.168

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), nn.202, 203, 214

Sheikh v. Gonzales, 427 F.3d 1077 (8th Cir. 2005), n.375

Shepard v. United States, 544 U.S. 13 (2005), n.361

Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000), n.817

Silva v. Ashcroft, 394 F.3d 1 (1st Cir. 2005), n.727
table of cases immigration law: a primer

176

Singh v. Gonzales, 432 F.3d 533 (3d Cir. 2006), n.503

Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004), n.346

S-K-, In re, 23 I. & N. Dec. 936 (BIA 2006), nn.341, 345

Skidmore v. Swift & Co., 323 U.S. 134 (1944), n.122

Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004), nn.108, 381

Soberanes v. Comfort, 388 F.3d 1305 (10th Cir. 2004), n.219

Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005), n.511

Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004), nn.171, 173–75

State v. Paredez, 101 P.3d 799 (N.M. 2004), n.841

Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), n.475

Strickland v. Washington, 466 U.S. 668 (1984), nn.826–31

Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), n.586

Sugarman v. Dougall, 413 U.S. 634 (1973), nn.150, 165

Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006), n.647

Sviridov v. Ashcroft, 358 F.3d 722 (10th Cir. 2004), n.606

Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002), n.142

Taylor v. United States, 396 F.3d 1322 (11th Cir. 2005), n.502

Taylor v. United States, 495 U.S. 575 (1990), n.361

Thai v. Ashcroft, 389 F.3d 967 (9th Cir. 2004), n.117

Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2006), nn.324, 610

Thomas, In re, 24 I. & N. Dec. 416 (BIA 2007), n.478

Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), nn.219, 220

Torres-Garcia, In re, 23 I. & N. Dec. 866 (BIA 2006), n.309

Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986), n.552

Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008), nn.118, 213

Tsegay v. Ashcroft, 386 F.3d 1347 (10th Cir. 2004), n.105

Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001), n.197

Ucelo-Gomez v. Gonzales, 464 F.3d 163 (2d Cir. 2006), nn.132, 134, 135

United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), nn.139, 203

United States v. Ayon-Robles, 557 F.3d 110 (2d Cir. 2009), nn.475–77

United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008), n.476

United States v. Couto, 311 F.3d 179 (2d Cir. 2002), nn.838–39

United States v. DeLeon, 444 F.3d 41 (1st Cir. 2006), n.207

United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001), n.185

United States v. Gonzales, 202 F.3d 20 (1st Cir. 2000), n.840

United States v. Illinois, No. 07-3261, 2009 U.S. Dist. LEXIS 19533 (C.D. Ill. 

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United States v. Kim, 193 F.3d 567 (2d Cir. 1999), n.852
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United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), n.823

United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995), n.185

United States v. Lue, 134 F.3d 79 (2d Cir. 1998), n.185

United States v. Mead, 533 U.S. 218 (2001), nn.120–21

United States v. Montenegro, 231 F.3d 389 (7th Cir. 2000), n.185

United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), n.476

United States v. Santos-Riviera, 183 F.3d 367 (5th Cir. 1999), n.185

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), n.183

Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005), n.390

Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006), n.134

Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978), n.182

Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858 (N.D. 

Tex. 2008), nn.888, 890

Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007), n.583

Vuksanovic v. U.S. Attorney General, 439 F.3d 1308 (11th Cir. 2006), n.379

Wadud, Matter of, 19 I. & N. Dec. 182 (BIA 1984), n.639

Wang v. Attorney General of the United States, 423 F.3d 260 (3d Cir. 2005), 

nn.655–56

We Are America/Somos America, Coalition of Arizona v. Maricopa County Board 

of Supervisors, 594 F. Supp. 2d 1104 (D. Ariz. Jan. 12, 2009), n.888

Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. 2006), n.78

Wong Wing v. United States, 163 U.S. 228 (1896), nn.183, 210

Xiao Ji Chen v. U.S. Department of Justice, 471 F.3d 315 (2d Cir. 2006), nn.62, 69–

74

Yakovenko v. Gonzales, 477 F.3d 631 (8th Cir. 2007), n.68

Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86 (1903), n.199

Yan v. Gonzales, 438 F.3d 1249 (10th Cir. 2006), nn.783–97

Young v. Reno, 114 F.3d 879 (9th Cir. 1997), n.250

Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir. 2004), n.93

Zadvydas v. Davis, 533 U.S. 678 (2001), nn.116, 211–13, 215, 218

Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007), nn.865–73

Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005), nn.682, 684

Zhang v. Mukasey, 543 F.3d 851 (6th Cir. 2008), n.113

Zhang v. United States Department of Justice, 362 F.3d 155 (2d Cir. 2004), n.93

Zheng v. Gonzales, 417 F.3d 379 (3d Cir. 2005), n.523

Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005), n.631

Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006), nn.817–18
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit

Judge David O. Carter, U.S. District Court for the Central District of California

Magistrate Judge John Michael Facciola, U.S. District Court for the District of Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine

Judge Loretta A. Preska, U.S. District Court for the Southern District of New York

Judge Philip M. Pro, U.S. District Court for the District of Nevada

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Office of the U.S. Courts and seven judges 

elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training programs for judges and court staff, 

including satellite broadcasts, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines 

and evaluates current and alternative federal court practices and policies. This research 

assists Judicial Conference committees, who request most Center research, in developing 

policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications Policy & 

Design Office—in using print, broadcast, and online media to deliver education and 

training and to disseminate the results of Center research. The Federal Judicial History 

Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from 

foreign countries and assesses how to inform federal judicial personnel of developments 

in international law and other court systems that may affect their work.