United States immigration regulations are neither linear nor definite in their execution. Further, interpretations of the immigration laws are not confined to the judiciary, the workforce executing such laws have a very wide discretion and can interpret it the way they want under the guise of “Immigration Policy.” Thus, they vary, depending upon the person or entity involved. After September 11, 2001, there has been a dramatic change in the laws regarding entry, presence and removal of aliens, or their graduation to a permanent entrenchment (“welcome”) as citizens. From a strange “alien” to familiar one, the leap is that of a green card, yet the “alienage” continues, much to the chagrin of this title bearer. Only upon acquisition of citizenship, would this taxonomic label be wiped, but the exotic spells of a new entrant continues. Not a naturalized, but a natural born within the soil of United States, would be considered a full-fledged citizen—a simple example—presidential running. The judiciary has rendered a yeoman service in eliminating the difference between the natural born and naturalized citizens—yet, the differences continues, on a subtle level—even on an intimidating level--a notorious example is denaturalization.
The issues confronted by the aliens/immigrant from the entry to the retrenchment or establishing a permanent abode as citizen are very varied. They need to be addressed. Slightest aberration can attract serious legal penalties including removal from the country. Thankfully the workload command for the alien is just federal—follow the laws and pay taxes. Yet, state laws breach can trigger federal removal of the alien. No doubt that the naturalization or citizenship clause of the U.S. Constitution gave only the Congress the power to decide the naturalization, admission, and deportation of noncitizens. Congress has provided removal based on violations of state criminal laws. The Immigration and Nationality Act of 1952 (INA) provides the framework of the landscape of the immigration system. It is interpreted and implemented by the Code of Federal Regulations. What state penalties trigger removal of a alien is a highly litigated. The removal begins by United States Justice Department, in fact with the government in-house departments. The Department of Justice oversees the Executive Office for Immigration Review, which houses both the immigration courts and its appellate body, the Board of Immigration Review. The immigration court jurisdiction is triggered by the government initiating action against the alien. For denaturalization, it is usually the United States attorneys office filing a complaint with the District Court. Denaturalization is not a criminal proceeding, it is deemed to be civil in nature. However, denaturalization is preceded by bringing federal offense charges, premised upon assertions that the naturalization was obtained upon suppression or misstatement of material facts.
The United States grants visas for entries. Entry of people can be a permanent or a temporary one, depending upon the applications filed. The INA categorizes the alien admission to the United States as temporary visitors or nonimmigrants provided such persons are not inadmissible under other mentioned grounds. The entry and duration of the stay is dependent on the type of visa availed. The other category of admission is granted to those who are immigrating on an employment or a family based application.
There are five employment-based preferences by which the foreign nationals obtain immigrant visas. And they are “priority workers,” “exceptional ability” (sciences, arts, or business, and advanced-degree professionals); skilled workers, professionals without advanced degrees, and other workers, including unskilled workers; “special immigrants” (described in INA § 101(a)(27)(C) through (J), 8 U.S.C.A. § 1101(a)(27)(C) through (J)) and; the last and fifth one is investors in new commercial enterprises. This fifth one labelled as EB-5 has gaining wide traction worldwide and many are in que or have been duped by fraudulent enterprises. The best part of EB-5 the foreign investor can file his own petition with USCIS seeking fifth preference classification without a job offer. It is a standalone petition but must show establishment of a new commercial enterprise and that requisite capital has been invested. However, a caution is advised here.
The last and simple admission is based upon a family sponsorship. The sponsor or the beneficiaries fall under: child, parent, spouse, son, daughter, brother, or sister. There is the other category of a battered spouse or an abandoned child, who could avail the immigrant petition.
Another pool of people are the refuges or asylum seekers. United States grants protection to these people under three legal grounds: asylum, withholding of removal under INA § 241(b)(3), and protection from removal under the Convention Against Torture. The process to grant relief under these provisions is both administrative and judicial
The aforesaid sounds simple, yet very tricky issues arise while availing relief under any of the foregoing legal provisions. Our team of lawyers and consultants minutely examine the relevant laws and its individuated application to the immigrant or aliens.
Employment based Immigration
Employment within the United States may pave way for immigration. Immigration law can obtain green card through employer sponsorship. Three things have to happen for this— (1) the Department of Labor (DOL) must issue an alien labor certification to the immigrant's employer, (2) the United States Citizenship and Immigration Service's (USCIS) must approve the employer's immigrant visa petition (Form I–140), and (3) the immigrant must obtain approval of her own 1–485 application for adjustment of status. The first step creates what we call it a “priority date,” which is crucial about the timing of the adjustment of status. The third step is time consuming, green card is not available unless a permanent residency visa is available. Because there are limits on the number of such visas in each category and from each country, immigrants must often wait many years for a permanent residency visa, especially if they are from a country, like India, that sends a large number of immigrants to the United States. One has to have an approved labor certification and a granted I -140 petition before the adjustment could be obtained at the priority date.
Family based Immigration
Immigration to the United States through a relative already based in United States is the simplest route with both the shortest and longest time, depending on if you are an immediate family member (Parents, spouse and minor children) or adult children or siblings of the U.S. citizen or a non-citizen’s spouse and adult children.
The United States immigration laws allows both the citizens and Green Card holders of the United Sates to sponsor immigration of their spouses, siblings and children. Children, spouse and parents of a U.S. citizens are immediate relatives—they can apply for and receive an immigrant visa as soon as their application is approved.
Deportation and Removal
One would hear removal and or deportation interchangeably used to remove someone from United States. However, there was a difference between these two process. Now, there is no difference under the immigration law regarding these two processes by the government—removal or deportation. Removal or Deportation results in same blunt consequence—removal from the country and bar to reentry. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has done away with the previous legal distinction among deportation, removal, and exclusion proceedings. IIRIRA § 304 (codified at 8 U.S.C. §§ 1229–1229c). So, pursuant to the now applicable law, all taxonomic classification are done away—all proceeding be it, deportation, removal, and exclusion proceedings—are to be labelled as removal proceeding. Even the existing old immigration orders like ‘orders of deportation” are to be labelled “orders of removal.”
Regular Removal
Unlike expedited Removal , regular Removal Proceeding is a regular Judicial Process
Despite the changes in the labels regarding removal of the non-citizens, we still have two separate grounds for removal—First one (inadmissibility),(see expedited removal) for those who have not been admitted to the United States and are inadmissible under immigration laws called or under Immigration National Act section 212 and second (deportability) for them, who have been admitted to the United States (i.e., entered legally) and are deportable under INA §237(a). Violation of any of the laws under inadmissibility and deportability are grounds for removal. Thus, two sets of removal grounds exist: inadmissibility and deportability. Any alien can be “removed” because he or she is ineligible for admission to the United States (“inadmissible”), or because he or she has violated the terms of his or her status or committed proscribed acts after having been admitted to the United States (“deportable”).
Mandatory Detention while facing Removal from United States
It would take time to remove a non-citizen even under the expedited removal process. What happens to the non-citizen, non-immigrant facing the removal? He is usually taken into custody and is confined under mandatory detention. And the axe falls on those with criminal conviction. The immigration law makes that detention compulsory. 8 USC § 1226(c), INA § 236(c). And sadly, there is no release on bond.
It is legal and constitutionally valid. The Supreme Court has already approved of it. Demore v. Kim, 538 U.S. 510, 523 (2003) (“detention during deportation proceedings it is a constitutionally valid aspect of the deportation process.”). So, under both circumstances—if you are inadmissible or deportable-- mandatory detention is on cards. As such all non-citizens in removal proceedings may be detained, and certain non-citizens cannot be released from their detention. Section 1226 provides the Attorney General with the authority to detain non-citizens. Section 1226(c) then provides for the mandatory detention of a set of non-citizens in custody pursuant to the sentence of a criminal court. Detention under this provision is mandatory for any alien falling within its scope and “may end prior to the conclusion of removal proceedings only if the alien is released for witness-protection purposes. Under what offenses does the mandatory detention apply?
Immigration law violation as a predicate for private RICO claim
Civil RICO claim can be a powerful remedy against the immigration law offending party. “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorneys fee.” 18 U.S.C. § 1964. Criminal violation of immigration laws can be a basis to bring a civil claim for damages. Section 1961(1)(F) includes as racketeering activity any act punishable under immigration laws. Different provisions under the Immigration and Nationality Act like section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose), if the act indictable under such section of such Act was committed for the purpose of financial gain are grounds for bringing a civil RICO claim. Thus, anyone who knowingly (1) hire at least ten individuals during a twelve-month period with actual knowledge that the individuals are illegal aliens; (2) bring or attempt to bring illegal aliens into the United States; (3) encourage illegal alien to come, enter, or reside in the United States; or (4) conceal, harbor, or shield an illegal alien from detection, or attempt to conceal, harbor, or shield an illegal alien from detention. Harboring is given a very liberal reading. It “comprises a wide range of conduct, including providing illegal aliens housing, transportation, arranging sham marriages, assisting them in getting employment, teaching them to hide their illegal identity, and ‘shelter[ing] [illegal aliens] from the immigration authorities and shield[ing] [them] from observation to prevent their discovery.’”
Immigration Law
United States immigration regulations are neither linear nor definite in their execution. Further, interpretations of the immigration laws are not confined to the judiciary, the workforce executing such laws have a very wide discretion and can interpret it the way they want under the guise of “Immigration Policy.” Thus, they vary, depending upon the person or entity involved. After September 11, 2001, there has been a dramatic change in the laws regarding entry, presence and removal of aliens, or their graduation to a permanent entrenchment (“welcome”) as citizens. From a strange “alien” to familiar one, the leap is that of a green card, yet the “alienage” continues, much to the chagrin of this title bearer. Only upon acquisition of citizenship, would this taxonomic label be wiped, but the exotic spells of a new entrant continues. Not a naturalized, but a natural born within the soil of United States, would be considered a full-fledged citizen—a simple example—presidential running. The judiciary has rendered a yeoman service in eliminating the difference between the natural born and naturalized citizens—yet, the differences continues, on a subtle level—even on an intimidating level--a notorious example is denaturalization.
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Power of the Immigration Authorities to Detain Non-Citizen
The United States can detain aliens seeking admission (8 USC 1225, INA 235) and those aliens already in the country pending the result of their removal proceeding (8 USC 1226, INA 236). Detention is considered as a necessarily a part of the deportation procedure.
