Resident status consists of various legal categories. These categories include U.S. Citizenship, Lawful Permanent Residence, Conditional Residence, Asylee, Refugee, Withholding of Removal, Convention Against Torture, Non-Immigrant, and Undocumented (known popularly as "illegal"). Historically speaking, a great many immigrants struggled to come to the United States of America. Some escaped oppressive regimes. Others sought better opportunities for themselves and their children. Irrespective of the background, generations of immigrants knew obtaining United States Citizenship symbolized the "brass ring." An alien who aspires to become a U.S. citizen must go through the process of naturalization.
Naturalization involves conferring nationality of a state upon a person after birth. Aliens opt to naturalize for the reasons described above as well as many other reasons. For example, U.S. citizens are not deportable or removable. Additionally, foreign family members of naturalized citizens may be able to immigrate to the U.S. sooner. Finally, only citizens enjoy the fundamental right to vote. This may be especially important to immigrants who came to American shores to be free.
The first paragraph provides many categories besides U.S. Citizen. Notably, the second category on the list is "Lawful Permanent Resident" (LPR). Immigrants who have been lawfully admitted to the United States have LPR status. To obtain LPR status one must comply with procedural rules and satisfy legal requirements. Even so, immigrants who do not become naturalized may find their LPR status threatened. These individuals may be deported.
Deportation applies only to non-citizens lawfully admitted to the United States. A non-citizen may face deportation on various grounds. These grounds may include a criminal conviction for an aggravated felony (AF), a controlled dangerous substance offense, crimes involving moral turpitude (CIMT), firearm offenses, and crimes of domestic violence, stalking, crimes against children, or violations of protection orders.
Administrative Soup
Many federal agencies have a hand in immigration administration. These roles include legislative functions, enforcement, and adjudication. This post will describe the structure and explain some of the entities.
Note: This post may become overwhelming. The diagram at the bottom can be deceiving because of its simplicity. Its simplicity is the reason that reason it is helpful.
Two entities sit at the top of the structure. These two bodies are the Department of Homeland Security (DHS) and the U.S. Department of Justice, Executive Office for Immigration Review (EOIR).
Formed in 2003, DHS replaced the Immigration and Naturalization Service (INS). INS was an entity within the Department of Justice (DOJ). In this respect DHS differs from INS because DHS is separate from DOJ.
DHS consists of entities that are directly involved in immigration administration. These entities are the U.S. Citizenship and Immigration Review Service (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the Administrative Appeals Office (AAO).
Yesterday I explained DHS enforces the nation's immigration laws. In this respect, ICE fulfills a role like the local police. Similar to the enforcement of local and state law by the police, ICE enforces immigration law.
DHS also administers immigration and naturalization benefits. In this respect, DHS is primarily responsible for promulgating regulations, a role similar to the legislative branch of government.
The Administrative Appeals Office (AAO) was carried over from the INS. As noted above, DHS is separate and distinct from DOJ. Consequently AAO, a DHS entity, is not a DOJ entity. AAO is an exception to the general intent to allocate adjudicative duties to DOJ. AAO hears appeals from certain kinds of DHS denials of applications and petitions. These DHS denials may relate to employment-based petitions and non-immigrant visa petitions.
Likewise, many entities within EOIR are directly involved in immigration administration. These entities are the Office of the Chief Immigration Judge (OCIJ), the Board of Immigration Appeals (BIA), the Office of the Chief Administrative Hearing Officer (OCAHO).
EOIR is responsible for administering Immigration Courts across the country. In furtherance of this duty, the EOIR Director oversees OCIJ, which in turn oversees Immigration Judges (IJ) that hear charges by the government against individual immigrants.
IJs are akin to the trial court judges because both conduct court proceedings and act independently in deciding controversies. IJs resolve controversies by applying INA, federal regulations, and precedent from BIA and federal courts to the facts of each case. BIA is an administrative appellate court that reviews IJ determinations with respect to immigrant residency.
Within EOIR, BIA is the highest appellate court with respect to issues of immigration and nationality. Therefore, BIA jurisdiction extends to all IJs across the country as well as certain DHS decisions. Additionally, BIA establishes the rules of court for the IJs to follow.
Another EOIR branch is the Office of the Chief Administrative Officer (OCAHO). OCAHO differs from OCIJ and BIA with respect to its form and function. The previous paragraphs about OCIJ and BIA illustrate a horizontal relationship with respect to their position in EOIR, and a vertical relationship as to adjudication and authority. One factor that makes OCAHO different is its independence. As to form, OCAHO consists of Administrative Law Judges (ALJ). OCAHO ALJs have nothing to do with OCIJ. They hear disputes involving employer sanctions, anti-discrimination, and document fraud under the Immigration and Nationality Act (INA).
A separate DOJ body is the Office of Immigration Litigation (OIL). OIL represents the United State of America in federal court when the subject matter is immigration-related civil trial litigation and appellate matters. Unlike the entities described above, which fall within the Department of Justice, Executive Office for Immigration Review (EOIR), AAO falls under the DOJ Civil Division.
This diagram illustrates the foregoing explanation as to structure:
DHS
|-- USCIS
|-- ICE
|-- AAO
DOJ
|-- EOIR
| |-- OCIJ -- IJs
| |-- BIA
| |-- OCAHO
|
|-- OIL
Of course this structure falls under the Executive branch of the federal government whose head is the President. Nevertheless, this structure and allocation of roles demonstrates an intent to separate the powers (with the exception of AAO) similar to the separation of powers between the judicial, legislative, and executive branches of the federal government.
Note: This post may become overwhelming. The diagram at the bottom can be deceiving because of its simplicity. Its simplicity is the reason that reason it is helpful.
Two entities sit at the top of the structure. These two bodies are the Department of Homeland Security (DHS) and the U.S. Department of Justice, Executive Office for Immigration Review (EOIR).
Formed in 2003, DHS replaced the Immigration and Naturalization Service (INS). INS was an entity within the Department of Justice (DOJ). In this respect DHS differs from INS because DHS is separate from DOJ.
DHS consists of entities that are directly involved in immigration administration. These entities are the U.S. Citizenship and Immigration Review Service (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the Administrative Appeals Office (AAO).
Yesterday I explained DHS enforces the nation's immigration laws. In this respect, ICE fulfills a role like the local police. Similar to the enforcement of local and state law by the police, ICE enforces immigration law.
DHS also administers immigration and naturalization benefits. In this respect, DHS is primarily responsible for promulgating regulations, a role similar to the legislative branch of government.
The Administrative Appeals Office (AAO) was carried over from the INS. As noted above, DHS is separate and distinct from DOJ. Consequently AAO, a DHS entity, is not a DOJ entity. AAO is an exception to the general intent to allocate adjudicative duties to DOJ. AAO hears appeals from certain kinds of DHS denials of applications and petitions. These DHS denials may relate to employment-based petitions and non-immigrant visa petitions.
Likewise, many entities within EOIR are directly involved in immigration administration. These entities are the Office of the Chief Immigration Judge (OCIJ), the Board of Immigration Appeals (BIA), the Office of the Chief Administrative Hearing Officer (OCAHO).
EOIR is responsible for administering Immigration Courts across the country. In furtherance of this duty, the EOIR Director oversees OCIJ, which in turn oversees Immigration Judges (IJ) that hear charges by the government against individual immigrants.
IJs are akin to the trial court judges because both conduct court proceedings and act independently in deciding controversies. IJs resolve controversies by applying INA, federal regulations, and precedent from BIA and federal courts to the facts of each case. BIA is an administrative appellate court that reviews IJ determinations with respect to immigrant residency.
Within EOIR, BIA is the highest appellate court with respect to issues of immigration and nationality. Therefore, BIA jurisdiction extends to all IJs across the country as well as certain DHS decisions. Additionally, BIA establishes the rules of court for the IJs to follow.
Another EOIR branch is the Office of the Chief Administrative Officer (OCAHO). OCAHO differs from OCIJ and BIA with respect to its form and function. The previous paragraphs about OCIJ and BIA illustrate a horizontal relationship with respect to their position in EOIR, and a vertical relationship as to adjudication and authority. One factor that makes OCAHO different is its independence. As to form, OCAHO consists of Administrative Law Judges (ALJ). OCAHO ALJs have nothing to do with OCIJ. They hear disputes involving employer sanctions, anti-discrimination, and document fraud under the Immigration and Nationality Act (INA).
A separate DOJ body is the Office of Immigration Litigation (OIL). OIL represents the United State of America in federal court when the subject matter is immigration-related civil trial litigation and appellate matters. Unlike the entities described above, which fall within the Department of Justice, Executive Office for Immigration Review (EOIR), AAO falls under the DOJ Civil Division.
This diagram illustrates the foregoing explanation as to structure:
DHS
|-- USCIS
|-- ICE
|-- AAO
DOJ
|-- EOIR
| |-- OCIJ -- IJs
| |-- BIA
| |-- OCAHO
|
|-- OIL
Of course this structure falls under the Executive branch of the federal government whose head is the President. Nevertheless, this structure and allocation of roles demonstrates an intent to separate the powers (with the exception of AAO) similar to the separation of powers between the judicial, legislative, and executive branches of the federal government.
Immigration Law Basic Background
Immigration Law is highly complex. It certainly appears that way to me. That said, I can offer a few insights based on my training and experience. This background will be important because future posts may refer to this information without explanation. The following framework seems consistent with general principles of administrative law.
Successful immigration practice requires knowledge and mastery of various legal sources. These sources include statutes, regulations, decisions by the Board of Immigration Appeals (BIA), federal cases, and policy guidance from U.S. Citizenship and Immigration Services (USCIS).
Congress enacted The Immigration and Nationality Act (INA) in 1952, and it is the basic body of immigration law. This statute stands alone, and it also may be found in Title 8 of the United States Code (USC).
The Code of Federal Regulations (CFR) contains rules developed by regulatory agencies. The Department of Homeland Security (DHS) is primarily, though not exclusively, charged with enforcing the nation's immigration laws. Therefore, DHS is primarily, if not exclusively, responsible for promulgating these regulations. Immigration regulations are in Title 8 of the CFR.
BIA is part of the Executive Office for Immigration Review (EOIR), a federal agency within the Department of Justice. BIA is an appellate review panel within EOIR. Thus, BIA decides appellate administrative issues. These decisions apply on a national scale to DHS Bureaus responsible for enforcing immigration laws. In general, these decisions are binding on all DHS officers and Immigration Judges. They are not binding, however, if the decision has been modified or overruled by the Attorney General or a Federal Court.
Federal case law provides a source of law for immigration practice.
Finally, USCIS provides policy guidance for immigration issues.
For more information, please feel free to visit www.uscis.gov
Successful immigration practice requires knowledge and mastery of various legal sources. These sources include statutes, regulations, decisions by the Board of Immigration Appeals (BIA), federal cases, and policy guidance from U.S. Citizenship and Immigration Services (USCIS).
Congress enacted The Immigration and Nationality Act (INA) in 1952, and it is the basic body of immigration law. This statute stands alone, and it also may be found in Title 8 of the United States Code (USC).
The Code of Federal Regulations (CFR) contains rules developed by regulatory agencies. The Department of Homeland Security (DHS) is primarily, though not exclusively, charged with enforcing the nation's immigration laws. Therefore, DHS is primarily, if not exclusively, responsible for promulgating these regulations. Immigration regulations are in Title 8 of the CFR.
BIA is part of the Executive Office for Immigration Review (EOIR), a federal agency within the Department of Justice. BIA is an appellate review panel within EOIR. Thus, BIA decides appellate administrative issues. These decisions apply on a national scale to DHS Bureaus responsible for enforcing immigration laws. In general, these decisions are binding on all DHS officers and Immigration Judges. They are not binding, however, if the decision has been modified or overruled by the Attorney General or a Federal Court.
Federal case law provides a source of law for immigration practice.
Finally, USCIS provides policy guidance for immigration issues.
For more information, please feel free to visit www.uscis.gov
Cancellation of Removal
On August 2, 2010 a Legal Permanent Resident who had been in ICE detention for eleven months finally had his day in court. The Department of Homeland Security wanted to deport this man, and I was his attorney. This was not only my first pro bono client, but also my first official file. The most significant first to me, however, was this first experience with immigration law.
(It bears mentioning, therefore, that immigration law is beyond the scope of my general practice. This means at this point in my career I will refuse to represent a private immigration client.)
Last February I agreed to represent this individual. As an attorney, the private details of his circumstances are strictly confidential. The court record, however, reflects the most impotant result of this ordeal. The Immigration Judge granted our application to cancel his removal. This means the Department of Homeland Security may not exercise any authority to deport him now.
I learned many things during this experience. In a previous post I blogged about the importance of pro bono service as a means to learning. Similarly, I blogged about the relationship between a criminal conviction and immigration consequences under federal and state law. My upcoming posts are intended briefly to describe the factors an immigration court considers in determining whether to prevent DHS from deporting a Legal Permanent Resident.
(It bears mentioning, therefore, that immigration law is beyond the scope of my general practice. This means at this point in my career I will refuse to represent a private immigration client.)
Last February I agreed to represent this individual. As an attorney, the private details of his circumstances are strictly confidential. The court record, however, reflects the most impotant result of this ordeal. The Immigration Judge granted our application to cancel his removal. This means the Department of Homeland Security may not exercise any authority to deport him now.
I learned many things during this experience. In a previous post I blogged about the importance of pro bono service as a means to learning. Similarly, I blogged about the relationship between a criminal conviction and immigration consequences under federal and state law. My upcoming posts are intended briefly to describe the factors an immigration court considers in determining whether to prevent DHS from deporting a Legal Permanent Resident.
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