Summer 2017 Update

265 Pages·2017·2.6 MB·English

I N L :
MMIGRATION AND ATIONALITY AW
P S
ROBLEMS AND TRATEGIES
Lenni B. Benson
Lindsay A. Curcio
Veronica M. Jeffers
Stephen W. Yale-Loehr
Summer 2017 Update
Copyright © 2017
Carolina Academic Press, LLC
All Rights Reserved
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TABLE OF CONTENTS
Summary of Updates ............................................................................................................iii
Chapter 1: Immigration Law in Context: Exploring the Foundations of
Constitutional Power and Immigration Controls from Criminal
Penalties to Employer Sanctions ...............................................................................1
Chapter 2: Immigration Power: Finding the Dividing Lines ................................................66
Chapter 3: Nonimmigrant Visas and Maintaining Status in the United States .....................122
Chapter 4: Immigrants and Paths to Permanent Resident Status ..........................................134
Chapter 5: Inadmissibility: In Every Context .......................................................................158
Chapter 6: Deportability and the Removal Process ..............................................................167
Chapter 7: Relief from Removal ...........................................................................................186
Chapter 8: Asylum and Relief for People Seeking Refuge ...................................................219
Chapter 9: U.S. Citizenship and Naturalization ....................................................................258
ii
2017 Summary of Updates
Date of draft: July 7, 2017
The summer 2017 update to Immigration and Nationality Law: Problems and Strategies by Lenni
Benson, Lindsay Curcio, Veronica Jeffers, and Stephen Yale-Loehr contains many new
developments, including:
Chapter 1:
• The most recent statistics on immigration to the United States, including nonimmigrants,
immigrants, enforcement, and employer sanctions
• Summary of Sessions v. Morales-Santana, 582 U.S. __, 2017 U.S. LEXIS 3724 (June 12,
2017), in which the Supreme Court held that Congress violated equal protection by imposing
differing residence requirements on the U.S. citizen parents of children born abroad
• Summaries of recent federal cases involving preemption in the immigration context
• Summary of recent developments in the deferred action for childhood arrivals (DACA)
litigation
• Summary of recent developments in immigration sanctuary laws, including County of
Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871 (N.D. Cal. Apr. 25, 2017)
Chapter 2:
• Summary of the Supreme Court’s opinion in Trump v. International Refugee Assistance
Project concerning the Muslim travel ban
• Summaries of President Trump’s immigration-related executive orders
• Recent developments in expedited removal
• An excerpt of Castro v. DHS, 835 F.3d 422 (3d Cir. 2016), which denied habeas corpus
review to certain asylum seekers
• An excerpt of Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), concerning whether
detained immigrants are entitled to a bond hearing after six months
• New developments concerning noncitizens’ rights at the border
Chapter 3:
• Updates concerning the Visa Waiver Program, STEM OPT, U visas, and the
entrepreneurial parole program
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• Summary of President Trump’s April Executive Order on Buy and Hire American
• Summary of Matter of O- A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017)
Chapter 4:
• Recent changes in the State Department’s Visa Bulletin
• Updates concerning special immigrant juvenile status (SIJS)
• Summary of Matter of Dhanasar, 26 I. & N. Dec. 884 (AAO 2016), which sets forth a
new test for determining eligibility for a national interest waiver green card
• Updates concerning the deferred action for childhood arrivals (DACA) program
Chapter 6:
• The most recent statistics on removals
• Updates on current removal enforcement efforts by the Trump administration
• Recent cases testing the limits of what constitutes a crime involving moral turpitude
• New Problem 6-5 concerning deportability on a number of possible criminal grounds
• Summary of Esquivel-Quintana v. Sessions, 581 U.S. ___, 2017 U.S. LEXIS 3551
(2017), in which the Supreme Court determined when sexual abuse of a minor qualifies as an
aggravated felonies under INA § 101(a)(43)(A)
• Recent cases concerning the rights of children in removal proceedings
• Recent cases concerning whether detained immigrants have a right to a bond hearing
Chapter 7:
• New Problem 7-3.1 concerning cancellation of removal, bond, and detention
• Recent cases concerning various types of relief from removal
• Recent cases concerning whether an admission in or out of immigration court establishes
inadmissibility
• Recent updates concerning judicial and administrative removal under INA § 238
• Recent updates and cases concerning special immigrant juvenile status
iv
Chapter 8:
• New Problem 8-3.1 concerning whether a child fleeing gang violence might qualify for
asylum as a member of a particular social group
• A discussion of the impact of President Trump’s travel ban on refugees
• An update on Central American mothers and children applying for asylum at the U.S.-
Mexico border
• Summaries of recent particular social group cases, particularly concerning family
members and gang members
v
Copyright © 2017 Carolina Academic Press, LLC. All rights reserved.
Chapter 1: Immigration Law in Context: Exploring the
Foundations of Constitutional Power and Immigration
Controls from Criminal Penalties to Employer Sanctions
Page 1 (§ 1.01[A]): Add the following information about Mr. Chen Guangchen:
During the initial negotiations in the U.S. embassy, Chen did not request asylum in the United
States, but instead demanded to remain there as a free man. However, soon after leaving the
embassy, Chen feared that Chinese authorities would renege on their promises or take punitive
actions against his family members. After working 199
as a visiting scholar at NYU for a year, in 2013 Chen accepted a position at a conservative
research group called the Witherspoon Institute and also accepted a teaching position at Catholic
University. See http://www.nytimes.com/2013/10/03/world/americas/chinese-activist-joins-
conservative-research-group.html.
The United States has historically led the world in terms of refugee resettlement, and today
remains the top resettlement country. In fiscal year (FY) 2016, the United States resettled 84,994
refugees.
Besides accepting refugees for resettlement from countries of first asylum, the United States also
grants humanitarian protection to asylum seekers who present themselves at U.S. ports of entry
or claim asylum from within the country. In FY 2015 (the most recent year for which data is
available), the United States granted asylum to 26,124 individuals. For more information
see http://www.migrationpolicy.org/article/refugees-and-asylees-united-states
Page 1 (§ 1.01[A]): Add the following to the last paragraph:
From 2000 to 2014, the number of foreign students in the United States grew 72%. There are
almost 900,000 foreign students currently in the United States. About half come from China
(accounting for 31% of all foreign students), India, and South Korea. From 2013-2014, “[t]he
Middle East and North Africa was the fastest growing region of origin for international students
in the U.S., increasing by 20 percent.” See http://www.usnews.com/education/best-
colleges/articles/2014/11/17/number-of-international-college-students-continues-to-climb.
NAFSA: Association of International Educators has useful tools on its website that help calculate
the economic benefit of foreign students studying in the United States. For the academic year
2014-2015 NAFSA reported that nearly 975,000 foreign students generated an estimated $30
billion dollars for the U.S. economy. The website estimates that this student population generated
373,381 jobs related to the presence of the foreign students. See
http://www.nafsa.org/Explore_International_Education/Impact/Data_And_Statistics/NAFSA_Int
ernational_Student_Economic_Value_Tool/#stateData.
“International student enrollment in U.S. colleges and universities increased 10 percent between
school year (SY) 2013-14 and SY 2014-15, the highest growth rate in 35 years, reaching a record
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high of 975,000 students.” See http://www.migrationpolicy.org/article/international-students-
united-states.
The Institute of International Education’s Open Doors report for 2015 stated that the number of
international students grew 10% in 2014-2015. The report lists India, China and Brazil as the
leaders in countries sending students to the United States. See http://www.iie.org/en/Who-We-
Are/News-and-Events/Press-Center/Press-Releases/2015/2015-11-16-Open-Doors-
Data#.V3MSpo-cE5s.
In 2015 to 2016 Academic Year NAFSA reported that there were 1,043,839 foreign students
studying in the United States continuing the trend of recent years. However, after the election in
2016, several universities reported a sharp decline in foreign students’ applications. Several news
organizations reported drops of 35 to 40%. See, e.g., Aria Bendiz, “A Pause in International
Students?” The Atlantic Magazine, (Mar. 13, 2017) reporting a 39% decrease in undergraduate
applications for the Middle East.
Page 2 ((§ 1.01[A]) Update on DHS data:
Latest update from 2012: In summary, an estimated 11.4 million unauthorized immigrants were
living in the United States in January 2012, compared to 11.5 million in January 2011. These
results suggest little to no change in the unauthorized immigrant population from 2011 to 2012.
Of all unauthorized immigrants living in the United States in 2012, 42 percent entered in 2000 or
later. Entrants since 2005 accounted for 14 percent of the total. Fifty-nine percent of
unauthorized immigrants in 2012 were from Mexico.
An estimated 11.4 million unauthorized immigrants were living in the United States on January
1, 2012 compared to 11.5 million on January 1, 2011(see Figure 1). These estimates suggest little
change in the size of the unauthorized immigrant population between 2011 and 2012. See
https://www.dhs.gov/sites/default/files/publications/Unauthorized%20Immigrant%20Population
%20Estimates%20in%20the%20US%20January%202012_0.pdf.
Page 4 (§ 1.01[C][1]) Add the following to the last paragraph:
As of June 2017, the DHS has not yet released fiscal year 2016 data.
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Here is an infographic prepared by the USCIS:

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In 2015, 465,068 people immigrated in one of the immediate relative categories. Of this total,
spouses of U.S. citizens made up 265,367. The remaining immediate relatives were parents of an
adult U.S. citizen (132,961) and unmarried minor children of U.S. citizens (66,740). Altogether,
immediate relatives represented 44.2% of all new permanent immigrants. Spouses constituted
25.2% of this total. The total number of spouses continued to decline from prior years. For
detailed tables and information about where these immigrants initially settle in the United States,
see https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2015.pdf.
In 2015, 265,367 people obtained lawful permanent resident status through marriage to a U.S.
citizen. That represents a 1.7% increase from 2014. In 2015, immediate relatives of U.S. citizens
as a category for admission increased (from 2014) by 3.2% of the total number of people who
obtained lawful permanent resident status.

In 2014, 416,456 people immigrated in one of the immediate relative categories. Of this total,
spouses of U.S. citizens represented 238,852. The remaining immediate relatives were parents of
an adult U.S. citizen (116,387) and unmarried minor children of U.S. citizens (61,217).
Altogether, immediate relatives represented 41% of all new permanent immigrants and spouses
were 23.5% of this total. The total number of spouses continued to decline from prior years. For
detailed tables and information about where these immigrants initially settle in the United States.
See https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2014.pdf

In 2013, 248,332 people obtained lawful permanent resident status through marriage to a U.S.
citizen. That was a slight decline from 2011 and 2012. According to USCIS, this was the result
of delays in processing. The number of employment-based grants of permanent residents, on the
other hand, increased in 2013.
http://www.dhs.gov/sites/default/files/publications/ois_lpr_fr_2013.pdf (see table 2).

Page 5 (§ 1.01[C][1]): See table below describing the numbers of unaccompanied children
apprehended at the U.S.-Mexico border. In FY 2016 CBP stopped more than 58,000 children.
Mexican children are usually immediately repatriated pursuant to a treaty agreement. Congress is
considering legislation that would create border detention facilities and rapid adjudication for
children from other nations as well. See H.R. 495, “The Protection of Children Act of 2017.”

Page 6 (§ 1.01[C][1]): Add the following to the end of the family law subsection:

Immigration law is part of family life and should be an area of law that family law practitioners
become more knowledgeable about.

As discussed in Chapters 3 and 4, the federal government now recognizes same-sex marriages
that are valid in the place of formation as a basis for immigration sponsorship. See generally
http://www.uscis.gov/family/same-sex-marriages.

Since 2003, the Office of Refugee Resettlement has cared for more than 190,000 unaccompanied
children. The number of unaccompanied children referred to the program each year was
generally in the range of 6,000 to 7,000 until fiscal year (FY) 2012. Those numbers increased
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