2275

SUBJECT MATTER INDEX Alphabetization is word-by-word (e.g., “V Visas” precedes “VAWA petitioners”)

3- and 10-year bars, see Unlawful presence

30-60 day rule, see Fraud and mis-representation

42 USC §1983, see Litigation §212(c), see INA §212(c) §245(i), see Adjustment of status §245(k), see Employment-based

immigration, subhead: Adjust-ment of status

A

A visas (diplomats) (see also Diplomats) adjustment of status, 1256 cancellation under INA §222(g),

917, 1126, 1127 comparison of diplomatic visas,

1124–25 consular interview, waiver of, see

Consular processing, subhead: Nonimmigrant visas

criteria, 1125–27 deferred action, 1126 family members, 1126–27

employment, 1126, 1127 battered spouses, 1921

inadmissibility, 119, 1125–26 LPR status for children, 1166 overstays, 917, 1126, 1127 procedures, 1126 unlawful presence, 123

AAO review, 1586–91 appeal process, 1588–91 petitioner, not beneficiary, can ap-

peal, 1589–90 reopen, motions to, 1589 unlawful presence, accrual during,

1590 untimely appeal treated as motion,

1589, 1620 abandonment of application for relief, see Relief

from removal child abandonment

as CIMT, 103 as deportation ground, 247

of residency, see Lawful permanent residents

ABC litigation, see American Bap-tist Church (ABC) litigation

abortion assault with intent to commit abor-

tion inadmissibility for, 100

forced abortion, see Forced abor-tion/sterilization

absconders, 642–43 criminal charges, 365–66 procedure to arrest, 423–26

absentia hearings, see In absentia hearings

absolute immunity, see Litigation

ABTC, see Security checks, sub-head: Inspection databases and programs

abuse, see Child abuse; Spousal abuse; VAWA petitioners

abuse of discretion detention, 211 extreme hardship, 1762 failure to exercise discretion, 1761–

62 inconsistent decisions as, 1760–61 motion to reopen, 880–81, 1618,

1762–65 standard of review, 1759–68

academic students, see F visas

accessory after the fact as aggravated felony, 271, 280, 282 as crime involving moral turpitude,

102, 111, 321–22

accompanying defined, 1218 derivative status, 1229

accredited representatives (see also Unauthorized practice of

law) application of Lozada to, 530

acquiescence to circuit court decisions, 1556–58 by government officials (persecu-

tion), 741–44, 779

Adam Walsh Child Protection and Safety Act, see Child abuse

ADIS (Arrival and Departure Infor-mation System), see Security checks, subhead: Inspection data-bases and programs

adjustment of status (AOS), 1249–82 (see also specific types of petitions

and visas, specific nationalities, etc.) §245(i), 1266–74

approvable when filed, defined, 1269–71

grandfathering, 1268–72 labor certification, 1270–71 legislative history, 11, 14 reinstatement of removal order,

1273–74 removal proceedings, 1272–73 spouses, 1266, 1271–72

§245(k), see Employment-based immigration, subhead: Adjust-ment of status

A visas, see A visas (diplomats) abandonment, 1262 admission and AOS, 47, 66–68,

1263–64 advance parole, see Advance parole affidavits of support, see Affidavits

of support aged-out children, see Aged-out

children agreement by ICE counsel, see

Prosecutorial discretion Alien Registration Receipt Card (I-

551), see Green cards arriving aliens, see Arriving aliens asylees, see Asylees and refugees concurrent filing, 1173, 1236, 1325 conditional residents, see Condi-

tional residence crewmembers, see Crewmembers denial of adjustment, 1197, 1253–

62, 1280 denial of petition, 1241–42 differences with immigrant visa,

1245 diplomats/foreign officials, 1124–

25, 1130, 1256 discretionary denial, 1261–62 E visas, see E visas employment

employment authorization, see Em-ployment authorization

unauthorized employment as bar to AOS, 1253–54, 1267, 1274–76

employment-based immigration, see Employment-based immigra-tion; specific visa types

entry, not an, 47, 66–68, 1263–64 fiancées, see K-1 & K-2 visas filing, 1236–37, 1251, 1276–77 G visas, see G visas

adjustment of status, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2276

ICE counsel agreement, see Prose-cutorial discretion

ineligibility for AOS, 1253–62, 1467–68, 1529

J visas, see J visas judicial review, see Judicial review jurisdiction, 1276–77 K visas, see K-1 & K-2 visas lawful admission, 66–68 lawfully present as condition for,

1251 legislative history, 11, 14, 1249,

1266, 1274 nunc pro tunc permission to reapply

for admission, 1474–75, 1535–36

orphans, see Adopted children petition with DHS, 1236–37, 1276–

77 prosecutorial discretion, see Prose-

cutorial discretion protective order violations, effect

of, 1259 readjustment in proceedings, 1532 reentry permit, 1282–83 refugees, see Asylees and refugees remand, 1569–72 removal proceedings and AOS,

1264–66, 1529–32 continuances for adjustment, 491–

95 deportability not bar to adjustment,

1261, 1264, 1531 inadmissible aliens, 1264–66

waiver of inadmissibility, 1531–32, 1532–34

joint motion to dismiss for AOS, 470

LPRs in removal proceedings, 1498, 1532

marriage while in proceedings, 1200–03, 1256–58

motions to reopen, 1277, 1530, 1594–96

post-adjustment proceedings, 1282 reinstatement of removal, 1273–74 voluntary departure, effect of,

1530–31 rescheduling interview, 1262 rescission, 1280–81 revocation of petition, 1242–43,

1366–67 S visas, see S visas secondary evidence, 1252–53 special immigrants, see Special im-

migrants tax returns, 83, 1288–90 transferring adjustments, 1262–63 travel, 1277 TWOV, see Transit without a visa unauthorized employment, see sub-

head: Employment (in this heading)

adjustment of status, cont’d unlawful presence

three/ten-year bar, 121–34, 1272, 1279

tolling of, 124 unlawful status, see subhead: Ineli-

gibility for AOS (in this head-ing)

VAWA, 1172 venue, 1276–77 visa availability, 1251–52

retrogression, 1251–52 visa waiver program, 943, 1259–60 withdrawal of relief, 1467–68

Administrative Appeals Office, see AAO review

administrative closure, 586–87 administrative errors, expedited

processing of, 930 administrative notice, 795–96,

1461, 1576, 1585–86 Administrative Procedure Act

(APA) jurisdiction, 1644–52 rulemaking vs. adjudication, 1820

administrative record discovery outside the record, 1756–

57 federal review, 1756, 1796 immigration court, 588–89 old/stale asylum record, 880

administrative review, 1551–1620 (see also Federal jurisdiction; Judi-

cial review; specific tribunals and substantive issues)

Administrative Appeals Office, see AAO review

asylum cases, see Asylees and refu-gees

BALCA, see BALCA review BAR, see Board of Appellate Re-

view BIA, see BIA review bonds, see Bonds choice of law, 1748–49, 1793–95 claims processing rules, see Federal

jurisdiction conviction (finality), 313–15 deference to agency interpretation,

1772–87 Department of Homeland Security,

1572, 1586–91 departure during appeal, 1566–67 dilatory or frivolous appeal, 544,

1564 exchange visitors, see J visas exhaustion, see Exhaustion of ad-

ministrative remedies expedited removal, 200–01 fugitive status, 1619

in absentia hearings, see in absentia hearings

labor certification, see BALCA re-view

LAU, see Legalization Appeals Unit medical waiver, 77 OCAHO review, see Employer

sanctions order appealable to circuit court,

1787–89 petitioner (not beneficiary) as appel-

lant, 1455, 1551 summary removal order, 200–01 terrorist acts, 623 timeliness, 1459–60, 1558–60,

1588–89 unfair employment practices, 1591 wrongful deportation, 1748

admission, criminal, 568 controlled substance offense, 112 crime involving moral turpitude, 89

admission, judicial counsel’s acts binding, 538–40

admission and inspection (see also Inadmissibility grounds;

Removal proceedings—inadmissi-bility; Security checks, subhead: Inspection databases and programs)

adjustment of status not an admis-sion, 47, 66–68, 1263–64

applicant for, 65 border inspection, 191–92 burden of proof, 70, 77 cancellation of visa, 204, 627 challenges to lookout system, 192 credible-fear determination, see

Asylees and refugees criminal penalties, 330–60, 360–61 deferred inspection, 202–03 departure, as precondition for, 65–

66 derogatory information removed,

193–94 drug crimes, 112–17 entry and exit system, 921–22 entry not defining act, 63–64 error, correcting after entry, 924 EWI, 134–37 Fleuti doctrine (abandoned), 68–70 flexible definition, 66–68 inadmissible at entry, deportation

ground, 230 lawful admission as defining con-

cept, 63–64 lookout book, 192 of LPRs, see Lawful permanent res-

idents material misrepresentation, 140–46 medical inspection, 194 NSEERS, see NSEERS (special

registration) parole not an admission, 64

SUBJECT MATTER INDEX aggravated felons

2277

presumptions against, 907, 1229 primary inspection, 191–92 procedures for, 191–230, 915–16 reapplication nunc pro tunc waivers,

228, 1474–75, 1535–36 removal proceedings regarding,

197–201, 224–27 representation, right to during in-

spection, 194, 202 secondary inspection, 191–94, 915–

16 security clearance, 914–15 Technology Alert List (TAL), see

Security checks, subhead: In-spection databases and pro-grams

territorial sea, 66 time of initial admission, 915–16,

924 visa not required, 934–45 waivers, see Waivers wet-foot/dry-foot, see Cubans withdrawal of application, 203–04

adopted children, 1177–81 battered adopted child, 1178–79 criteria, 1177–81 customary adoption, 1180–81 Hague Convention, 12, 1185–90 legal custody requirement, 1178 legislation, 12 liability of foreign adoption agency

for withdrawing right to adopt, 1190

LPR provision for birth abroad not applicable, 1181

naturalization, 1961, 1983 orphans, 1181–85

adjustment limited, 1181, 1190, 1261

born out-of-wedlock, 1183 Child Citizenship Act, 1190 distinguished from adoption, 1181 naturalization, 1963, 1983 procedures, 1181–85 U.S. citizenship upon entry, 1190,

1958, 1963 petition for natural parents not per-

mitted, 1180 petition for natural siblings, 1180 priority dates, see Priority dates relation to natural family, 1180 residency requirement, 1177–78 same-sex couples, adoption by,

1184 siblings, adopting, 1179–80 vaccination waiver, 73–74

advance parole, 1277–79 adjustment of status, 1279 admissibility challenged, 1279 employment authorization jointly

issued, 1278 and Fleuti, 69–70

H/L visa holders not required to have, 1037, 1105–06, 1277

K-3/K-4 visa holders not required to have, 1277

revocation of, 1279 third-country processing, 1249 three- and ten-year bar, 125 vs. departure, 65–66

advanced degrees, see EB-2 visas; Foreign degrees

advisory opinions (DOS), see De-partment of State

affidavits of support (I-864), 78–86 125% rule, 79, 80, 84 asylees, 79 battered spouse/child, 79 binding contract, 84–86 criminal issues, 86 death of sponsor, 15, 82 designation of sponsor, 79 diversity immigrants, 79 divorce, effect on support obliga-

tions, 84–85 documentary requirements, 83 domicile requirement, 80–81 enforcement of affidavit, 84–86 household members, 80 income requirements, 81–82 joint sponsor, 80 legislation, 8, 15 National Visa Center processing,

1245–46, 1247 not required, 79 poverty guidelines, see Poverty

guidelines procedures, 83 public benefits, 1294–95, Apdx F refugees, 79 self-petitioners, 79 special immigrants, 79 sponsor, 79 substitute sponsor, 80, 82 support claim, 84–85 tax returns, 83

affirmance without opinion (AWO), 1553–56

exhaustion of remedies, 1554, 1720 judicial review of, 1554–55

Affordable Care Act (Obamacare) criteria, 1296–97 ICE use of information, 422, 1297

Afghanis special immigrant status, faithful

and valuable service, 28, 30, 1335–36

special immigrant status, translators, 23, 1333–34

Age Discrimination in Employ-ment Act (ADEA), 1931

aged-out children §245(i), 1271–72 accompanying, 1219 adjustment of status, 1222–29 asylum, see Asylees and refugees battered children, 1169, 1221 beneficiaries of 2nd pref. petitions,

1220, 1223 CSPA, see Child Status Protection

Act diversity, see Diversity immigrants employment-based, 1222, 1224–28 following to join, 1219 immediate relatives, 1223 K-4 visas, 1137, 1223 mandamus for, 1669 naturalization of parent, 1223–24 petition process, 1222–29 priority dates, see Priority dates refugees, 657, 896 unlawful presence, 126

agents H-1B visas, 996, 1029 immigration agents, see Immigra-

tion agents O visas, 1083 P visas, 1087

aggravated felons, 249–307, 379–80 §212(c) relief, 1493–1502 asylum, 715, 725 bond, see Bonds burden of proof, 578–81, 621 cancellation of removal, see Cancel-

lation of removal categorical approach, 286–301 Convention Against Torture, 710–

11 Davis/Barrett test, 254–58 definition, 249–307

relevance of sentencing guidelines, 379–80

deportation grounds, 249–307 “described in” language in statutes,

284 detention, see Detention divisible statutes, 264, 286–301 effective dates, 303–06 expedited removal, see Expedited

removal felony required, 252, 257–58, 282–

84 foreign convictions, 286 hearings, see Expedited removal;

Removal proceedings—deportation; Removal proceed-ings—inadmissibility; Summary removal

hybrid crimes, 271, 277–78 imprisonment, term of, 301–03 “involves” language, 285 judicial review, see Judicial review legislative history, 6, 7, 8–10, 249

aggravated felons, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2278

modified categorical approach, 292–94

naturalization, bar to, 1969–70 aggravated felons, cont’d offenses, 249–307

accessory after the fact, 271, 282 aiding and abetting, 271, 277, 282 arson, 264, 267 attempt, 271, 280–81 bribery, 279 burglary, 265, 268 child abuse, 249–52, 265, 268 child pornography, 273 commercial bribery, 279 conspiracy, 281–82 counterfeiting, 279 disclosure of intelligence agent, 274 document fraud, 278–79 drug trafficking, 252–59 DUI /DWI, 268 explosives, 259–60 failure to appear in criminal court,

280 failure to appear to serve sentence,

279 firearms offenses, 259–60 forgery, 279 fraud/deceit, 274–78

proving loss, 276–77 fugitive status, 280 gambling (RICO), 273 hybrid crimes, 271, 277–78 income tax, 274–78 manslaughter (involuntary), 266,

269 money laundering, 259 murder, 252 national defense, 274 obstruction, 280 passport, falsely making/altering,

278–79 perjury, 279–80 prostitution, 273–74 ransom, 273 rape, 252, 266 recidivism as basis for drug traffick-

ing, 258 reentry after deportation for aggra-

vated felony, 278 RICO offenses, 273 robbery, 266, 269 sexual abuse of a minor, 249–52,

266 slavery, 273–74 smuggling aliens, 278 stolen property, 269–73 subordination of perjury, 279–80 tax evasion, 274–78 theft, 269–73 trafficking in persons, 273–74 Travel Act violations, 258–59 two possession convictions, 258 vehicles, trafficking in, 279 violent crimes, 260–69

ordinary meaning of term, 285–86 petty offense, 303 presumption of deportability, 581,

620 probation sentence, 301 record of conviction, 297–300 reentry after removal, 330–31 “relating to” language, 284–85 relief, 1470–72, 1477 re-sentencing, 301–03, 328 retroactive application, 306–07 sentence, defined, 301–03 sentencing guidelines, 370–84

definition for INA purposes, 379–80

state-law violations, 282–84 summary removal, 581, 619–21 voluntary departure, see Voluntary

departure withholding of deportation, 731–32

agricultural workers, see H-2A visas; Legalization

aiding and abetting aggravated felonies, 271, 277, 282

AIDS/HIV no longer grounds for inadmissibil-

ity, 72 airlines crewmembers, see Crewmembers employees, employment authoriza-

tion, 948 fines, 386–88, 1142 private aircraft entering U.S., 922 suspension of entry of aliens

aboard, 386 Alabama legislation affecting immigration,

50–51 Alford pleas, see Plea bargains Alien Registration Receipt Card

(I-551), see Green cards Alien Tort Claims Act, see Litiga-

tion All Writs Act, 327, 1625, 1801 American Baptist Church (ABC)

litigation, 10, 757–58, 1518 American Competitiveness in the

21st Century Act (AC21), 12–13 (see also substantive headings)

American Indians in Canada, see North American Indians

American Institute in Taiwan, 1326 American Recovery and Rein-

vestment Act of 2009, 28 amnesty, see Legalization amnesty fraud, 146, 366 APIS (Advance Passenger Information

System), see Security checks, sub-

head: Inspection databases and programs

apparent eligibility asylum, 498–99, 787 IJ duty to inform of relief in remov-

al proceeding, 498–99 appeals, see Administrative Proce-

dure Act; Administrative review; Federal jurisdiction; Judicial re-view; specific tribunals and sub-stantive issues

approval notice obtaining duplicate (I-824), 910,

913, 1262 area control operation, 417–22 Arizona legislation affecting immigration,

51–52 Armed Forces of the U.S., see Mili-

tary service arrests abused persons

enforcement actions against VAWA petitioners, Ts, and Us; arrests in domestic shelters, 425

Bail Reform Act, 445–46 citizens, arrest of persons claiming

to be, 425 DHS, 423–26 FBI authorized, 426 INA §239(e) compliance, 425 National Guard, 426 state and local law enforcement,

49–53, 425–26 USA PATRIOT Act, 425

arriving aliens adjustment during removal proceed-

ings, 1264–66, 1279 bonds, see Bonds detention, see Detention IJ has no jurisdiction over bond,

204–05, 434 LPR considered as, 46–47, 68–70,

205–06, 208 arson as aggravated felony, 264, 267

ART, see Assisted reproductive technology

Art. III issues, see Federal jurisdic-tion

assisted reproductive technology (ART)

birth abroad with surrogate mother, 1956

gestational mothers, 1174, 1956 assisting inadmissible persons to

enter, 360

SUBJECT MATTER INDEX asylees and refugees

2279

asylees and refugees, 649–902 (see also Convention Against Tor-

ture; Withholding of removal) abandonment of application, 770 abortion, forced, see subhead: Co-

ercive population control (in this heading)

access to applicant, 785 activities in U.S. as grounds for,

864–65 adjustment of status, 896–902

numerical cap lifted, 900 removal, 901–02 spouse divorced from principal,

900–01 travel, 901

administrative notice of changed conditions, 795–96, 1585–86

administrative record (stale or old), 880

admission of refugees, 762–63 affidavit of support not necessary,

79 affirmative applications (Asylum

Office), 764–70 appeal of decision, 771, 775, 776 Convention Against Torture, 772 credible fear and reasonable fear,

see subhead: Credible- and rea-sonable-fear determinations (in this heading)

criteria to decide asylum, 772–74 discretionary denial, 772–74 incomplete application, 826 interview process, 770–71 jurisdiction, 764–65, 772, 774–76 locations of offices, 769 multiple filings, 720 NIV status, 769, 917 prior application, consequences of,

765 procedure, 764–65, 770–72 referral to IJ, 772 reinterview before removal, 775 retention of documents, 771 revocation, 774 third-party disclosure, 671–72, 769,

792 timeliness of filing, 611, 721–24 use of application against asylee,

765 withholding claim, 772

aged-out children, 657, 765, 893–94, 897, 901

aggravated felons, 715, 725 alternate theory of claim, 850–51 apparent eligibility, 498–99, 787 appeals

to BIA, 771, 878–79 (see also BIA review)

clearly erroneous standard of re-view, 820, 878–79

denial of refugee status; requests for review, 655

judicial review, 651–52, 724, 879–93, 1699–1702, 1766

(see also Judicial review) application process, see subheads:

Affirmative applications and IJ hearing (in this heading). See also specific topics in this head-ing

assailants not identified, 875 Asylum Offices, 769 background checks, 771, 792 bars to, 714–26, 772

frivolous applications, 765–69 persecution of others, 652–54

BIA review, see subhead: Appeals (in this heading)

bilateral agreement as basis to deny, 719–20, 772

biometric identification, 557–58, 771

bonds, 208–09, 434–35, 787–88 border, 764, 771 bribery to avoid persecution, 875 Bring Them Home Alive Act, 656 burden of proof, 792–94

asylum application as proof of de-portability, 575, 765

disfavored groups, 712–13 disqualifying ground, 724, 735 firm resettlement, 718 frivolous application, 767 pattern or practice, 711–12 rebutting well-founded fear pre-

sumption, 702–03 testimony as sufficient, 798

Bureau of Democracy, Human Rights, and Labor (f/k/a BHRHA), 780

Canadian-U.S. agreement, 719–20 cancellation of visa, 627 changed circumstances, 721–22

rebutting well-founded fear pre-sumption, 703–04

changed country conditions reopening, 1606–11

child applicants, 592, 782–85 (see also subheads: Aged-out chil-

dren and Family members (in this heading))

circumstantial evidence, 865 circumventing refugee procedures,

773–74 citizenship-stripping as persecution,

667 civil war as grounds for persecution,

667–68 CLASS check, 771, 915 classified information, 576–77, 875 clock (EAD), 789–91, Apdx D coercive population control

as persecution, 20, 652, 865–72

confidentiality, 671–72, 769, 792 congressional designation of refu-

gees, 654–55 conscientious objection, 670 conscription as persecution, 667,

669–70, 865 consequences of filing, 765–69 Convention Against Torture (CAT),

see Convention Against Torture corroboration of claims, 796–817

(see also subhead: Documentary evidence (in this heading))

continuances, 799 judicial review, 892–93, 1704–05 past persecution, 709 REAL ID Act, 798–99 when not required, 804

corruption, challenging as grounds for, 873–75

counsel, right to, 785–86 countrywide persecution, 704–08,

713–14 court personnel as grounds for, 872 credibility, see Credibility determi-

nations credible- and reasonable-fear de-

terminations, 197–98, 774–76 confidentiality, 769 parole, 199–200, 209–10, 788 reinterview before removal, 775 telephonic interviews, 774–75

crew members, 774, 782 criminal acts

acts in U.S. not negating asylum, 860

grounds for denial, 714–15, 724–26 custodial interrogation as persecu-

tion, 662 definitions

of asylee, 657 of refugee, 652

demeanor, 818–19, 821 denaturalization as persecution, 667 denial

discretionary, 726–27, 735–36, 772–74, 781–82

mandatory, 714–26, 772, 781 reconsideration, 727

departure during interview process, 770

dependents, see subhead Family members (in this heading)

deportability, use of asylum applica-tion to prove, 575, 765

derivative claims, see subhead Fam-ily members (in this heading)

detention, 204–22, 434–35, 787–88 disclosure of application to third

party, 671–72, 792 discretionary grounds for denial, see

subhead Denial (in this heading) discrimination v. persecution, 664–65 disfavored groups, 712–13

asylees and refugees, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2280

documentary evidence, 797–817 authentication of documents, 566–

68 country-condition reports (DOS),

771, 780, 810–17 administrative notice of condi-

tions, 795–96 documentation center, 764, 809 NGO and other reports, 809–10 standard for credibility of docu-

ments, 806–07, 1578 domestic law, generally, 651–52 domestic violence, 860–61 DOS advisory opinions, 771, 780,

795–96, 810–17 drug informants, 742, 872–73 dual nationality, 652

distinguishing firm resettlement, 718

due process, violation to remove person to his death, 760–61

economic status affluence, effect on finding of per-

secution, 875 deprived status as persecution, 665–

67 effective dates, 736, 764 emergency flow refugees, 652, 654 employment authorization, see sub-

head: Work authorization (in this heading)

equal treatment in adjudicating claim, 782

evidence (see also subheads, in this heading,

with specific types of evidence) nature of proof, 794–97 testimonial evidence, 817–51 types of evidence, 851–75

exit visa laws, 671 expedited hearing, 197–201, 764,

774 expedited processing before AO,

771 expedited removal, 782 expert testimony, 817 extortion as persecution, 864 extradition, 738, 760–61 extraordinary circumstances, 722–

24 failure to appear, see subheads: IJ

hearing and Interview before AO (in this heading)

failure to identify assailants, 875 false statements

at airport, 773–74, 829–31 bar to good moral character, 769 criminal and civil penalties, 765

asylees and refugees, cont’d family members

application, 763, 765, 772, 893–94, 900

Cuban Refugee Adjustment Act, 897

parent’s derivative application, 784–85

persecution of, 851–54, 869–71 refugee/parole program for minors

from El Salvador, Guatemala, and Honduras, 656

of refugees, 657, 763 fear of persecution, 710, 851–75

criminal conduct not negating fear, 860

female genital mutilation (FGM) as persecution, 863–64

firm resettlement, 716–19, 762 burden of proof, 717–18 dual nationality, 718

fraud on entry, as a basis for denial, 773–74, 824

frivolous applications, 765–69, 777, 781

gender-based persecution, 860–61 general political conditions, 667–68,

797 general-law application as persecu-

tion, 668 Geneva Convention, 649–51 government inability to stop perse-

cution, 673–76, 713–14 grant of, 893–94 guerrillas, evidence of specific

threats, 865 harassment vs. persecution, 664 hearings, see subhead: IJ hearings

(in this heading) hearsay evidence, 807–08, 814–15,

825 homosexuals, see subhead: Sexual

orientation, evidence of (in this heading)

humanitarian asylum, 708–09 identity of applicant checked, 771 IIRIRA changes, 10 IJ hearing

failure to appear, 781 proceedings, 776–82, 792–94 referral to IJ by AO, 772

imputed political opinion/motive, 678–80, 680–81

imputed social group claim, 683 in absentia hearings, 781 INA §222(g), 917 inadmissibility grounds, 762, 901 inconsistent treatment by govern-

ment, 860 ineligibility

for asylum status, 714–27 for refugee status, 652–54, 762

informants, 651, 872–73 interdiction, 657–58 international law, 649–51 interrogation as persecution, 662 interview before AO, 770–71

failure to appear, 770 gender identity, 771

Iraqis, 655 judicial review, see subhead: Ap-

peals (in this heading) legislation, see History of immigra-

tion laws; specific legislation LGBT, see subhead Sexual orienta-

tion, evidence of (in this heading) mandatory grounds for denial, see

subhead Denial (in this heading) marriage as persecution, 862, 864 material misrepresentation, 765–69,

773–74, 833 material support, see subhead Ter-

rorism (in this heading); Terror-ists and terrorism

medical treatment failure to seek, 661, 875 forced exam as persecution, 662

(see also subhead Coercive population control (in this heading))

membership in a particular social group, see subhead: Social group (in this heading)

military service as persecution, 669–70

military use against applicant as persecution, 860

minors (see subheads: Aged-out children;

Child applicants; Family mem-bers (in this heading))

mixed-motive cases, 694–96 motive of persecutor, 676–77 multiple filing bar, 720 NACARA, see NACARA nationality, lack of, 658, 667 newly discovered evidence, 876–79 nonimmigrant status, 769 normal flow refugees, 654 North Koreans, 656 Northern Mariana Islands, 727 notice

prior to finding evidentiary defi-ciency, 800

of right to apply, 787 Office of Refugee, Asylum and In-

ternational Operations (RAIO), 215, 764, 775

“on account of” defined, 676–77, 696–700

one-year limitation on filing, 721–24, 783

overseas refugees, 652–57 Palestinians, 658, 664–65 parent’s derivative application, see

subhead Family members (in this heading)

parole, see Parole particularly serious crime, 724–25,

729–33 passport as evidence of no persecu-

tion, 859

SUBJECT MATTER INDEX asylees and refugees, cont’d

2281

pattern or practice as evidence of persecution, 794 showing not required, 672, 711–12

periodic persecution, 672 permanent or serious injury not re-

quired, 659–61

persecution, 658–73 (see also subheads (in this heading)

covering specific groups being persecuted, specific acts of per-secution, specific situations, etc. For persecution of others as bar to status, see subhead: Persecu-tors (in this heading))

criminal conduct not affecting per-secution, 860

cumulative effect of, 672–73 defined, 652, 658–59 detention, not considered as, 662–63 discrimination vs. persecution, 664–

65 economic status, see subhead Eco-

nomic status (in this heading) emotional trauma, 663 forced medical examination, 662 harassment distinguished, 664 past persecution, 700–09

as basis for asylum, 700–09 as basis for withholding, 702,

727–28 corroboration, 709 rebutting well-founded fear pre-

sumption, 702–09 social group, 683

periodic, 672 physical harm not required, 659–61 prosecution distinguished, 668–71 release after persecution, 860 remaining in or returning to coun-

try, effect on asylum claim, 858–60

similarly situated, treatment of, 875 single incident sufficient, 672 valid passport affecting asylum

claim, 859 persecutors

ineligibility for asylum, 652–54 motives, 676–77

police officers, 872 political opinion defined, 677–81 population control, see subhead Co-

ercive population control (in this heading)

post-traumatic stress disorder, 556, 831

previous applications for asylum, 720 previous grants of asylum, evidence

of, 875 priority processing (P-1 to P-3), 655 prisoners, treatment as indicative of

persecution, 865

private organizations, evidence by, 809–10

pro se litigants, 878 prosecution distinguished from per-

secution, 668–71 protective order, 875 public hearing, 781 punitive intent unnecessary, 671 quotas, 761–62

no cap on adjustment, 900 REAL ID Act, 694–96, 715, 798–

804, 818–20, 832–33, 892–93, 900

reasonable fear, see subhead: Cred-ible- and reasonable-fear deter-minations (in this heading)

rebutting well-founded fear pre-sumption, 702–09

reconsideration of denial before physical removal, 775 torture claim raised, 749 withholding granted, 727, 781–82

record on appeal, too stale, 880 Refugee Act of 1980, 5, 651 refugees, admission of, 762–63

AG determination of admission or-der, 763

security screening, 655 reinstatement of removal order, 772,

775, 782 released after persecution, 860 religious persecution, 854–58 relocation to avoid future persecu-

tion, 704–05, 713–14 remand, motion to, 879, 1569–72 remand by court, 1796–1801 removal, expedited, 774–75 removal of refugees, 656–57 removal proceedings, referral to, 772

third country, 714 use of application to prove deporta-

bility, 575, 765 reopen, motion to, see Reopen, mo-

tion to rescheduling interview, 770 return to country of origin, 791,

858–59, 894 revocation, 774, 792–93, 895–96

for removal, 901–02 right to apply, 787 S visas, see S visas safe third country, 719–20, 773 sealed information, 875 security checks, 771, 792 security personnel, 872 serious nonpolitical crime, 715,

733–34 sexual assault as persecution, 861–62 sexual orientation, evidence of,

862–63 similarly situated, disparate treat-

ment by persecutors, 875 singled out, not standard, 794

social group defined, 681–87 imputed claim, 683 past-persecution claim, 683

Southeast Asians, 654 spouse and children, see subhead:

Family members (in this heading) standard of proof, 793–94 statelessness, 658, 667 sterilization, forced, see subhead:

Coercive population control (in this heading)

stowaways, 774, 782 termination of proceedings, 776 termination of status, 763, 774,

895–96, 901–02 terrorism

(see also Terrorists and terrorism) danger to U.S. security, 734–35 as grounds for denial, 715–16

testimonial evidence, 817–51 third-country agreement, 719–20 third-country removal, 714 threats without seizure, 865 translators, need for, 770 travel

to home country, effect on claim, 791, 858–59

right to, 791, 894, 901 U.N. Conventions

CAT, see Convention Against Tor-ture

Relating to Status of Refugees, 649–50

U.N. High Commissioner Hand-book, 649–50, 683

unaccompanied minors, see sub-head: Child applicants (in this heading)

union membership as grounds for, 858

unlawful presence, see Unlawful presence

vaccinations, exemption from re-quirement, 74

venue, 764–65, 786 visa cancellation, 627 visa waiver program, 434–35, 782 waivers, 177–78, 762, 901–02 well-founded fear, defined, 710–14,

793–94 whistleblower as grounds for asy-

lum, 873–75 withdrawal of application, 769–70 withholding of removal

(see also Withholding of removal) differences between asylum and

withholding, 777 women, generalized persecution of,

862 work authorization, 788–91, 894

athletes KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2282

athletes (see also O visas; P visas) amateurs, 24, 948, 1085, 1089 athletic organizations, 1415 B-1 admission, 948 employment authorization, special

provision for, 1922 H-2B visas, 1075 ice skaters, 1085 immigrants, 1301–05, 1365 labor certification, 1374, 1415,

1436, 1453 minor leaguers, 1085, 1089 professionals, 1085–86

traded, 1084, 1090, 1415, 1453, 1922

attempt as aggravated felony, 277, 280–81 as crime involving moral turpitude,

89, 98 drugs, 112

attenuation, 1743 attestation (see also Labor condition applica-

tions) D visa, 1142 fast track H-1B, 1044–45 H-1B, 990, 1005–28 H-1C, 1039 R visas, 1121 special immigrant religious work-

ers, 1325 Attorney General review of BIA,

1556 attorney-client privilege as basis to prevent search, 418 monitoring of attorney-client com-

munications, 538 attorneys (see also Counsel, right to) ethical issues and conduct, 543–44 fees, see Attorneys’ fees friends of the court, 541–42 government counsel

obligation of, 541 remand decisions, 1800–01

labor certification cases, see Labor certification

malpractice, 549 EB-5 cases, 1359

privileged communications, see At-torney-client privilege

pro bono representation, 523 registering electronically, 541 sanctions

before BALCA, 1462 before BIA, 544–47, 1024, 1564 before DHS, 548 in employer sanctions cases, 1899,

1949 in federal court, 548–49

in labor certification cases, see La-bor certification

in removal proceeding, 544–47 telephonic appearances and com-

munications, see Telephonic and video technology

unauthorized practice of law, 542 undocumented persons’ right to

practice, 53–54 attorneys’ fees Bivens, 1868 civil rights acts, 1868 employer sanctions, 1864, 1919 Equal Access to Justice Act, 1855–68

admin. work, fees for, 1863–64 bad faith exception, 1855–56 calculating fees, 1865–68 client’s, not attorney’s, fees, 1856–57 cost of living, 1865–66 costs and expenses, 1868 eligibility, 1856–63 employer sanctions, 1864, 1919 expert fees, 1865 federal litigation, fees for, 1863 hourly rate, 1865–68 interest, 1867 legislative history, 1855 naturalization petitions, 1864 position of U.S., 1859–63 prevailing party, 1857–59 pro bono counsel, 1856 pro se litigants, 1856 procedures for filing, 1864–65 remands, 1858 removal proceedings, 1863 special circumstances against

award, 1863 special factors for award above

$125/hour, 1866–67 standard of review, 1863, 1868 substantial justification of govern-

ment, 1859–63 Federal Torts Claim Act, 1868 fees for fees, 1867 forfeiture, 359 Freedom of Information Act

(FOIA), 1869 labor certification, see Labor certifi-

cation recovery of, 359, 1024, 1855–69 trafficking victims, 18, 1843–44,

1869 unfair employment practices, 1949

au pair program, 972 audiologist inadmissible without certificate, 89

audita querela writ, 327 audits employer sanctions, 1893–94 labor certification, 1404–08

Australian (E-3) special occupation visas, see E-3 visas

authentication of documents, 566–68 authority to regulate, see Federal

authority to regulate; Preemp-tion; State and local government

automated passport control (APC), see Security, subhead: Inspec-tion databases and programs

avoidance doctrine, 1811–12 AWO, see Affirmance without opin-

ion

B

B-1 visas (business visitors), 946–51 admissible as, 946–51 airline employees, 948 artists, 948 athletes, 948 business defined, 950 conferences, 946 domestic employment, 947–48 eligibility, 950 employment authorization, 950, 1876 equipment installation, 948 exploring E-2 investment, 948 family members of B-1, 951 in lieu of H-1 or H-3, 947 in lieu of J-1, 947 medical student, 948 payment abroad, 950 religious workers, 947 truck drivers, 948–49

B-2 visas (visitors for pleasure), 951–52

admissible as, 951–52 companion of H, L, E, 951–52 family of members of B-2, 951–52 language study, 952 nonspouse, accompanying partner,

951–52 back pay remedy for aliens, 1925

Bahamians no visa required, 939

Bail Reform Act, 445–46 BALCA review, 1013, 1405, 1455–

62, 1591 administrative/official notice, 1461 appeals, 1458–62 employer’s review only, 1455 motions to reconsider, 1455–58 motions to reopen, 1458 remand, 1461

bankruptcy no stay of employer sanctions case,

1897, 1908

SUBJECT MATTER INDEX bonds

2283

battered persons, see Child abuse; Spousal abuse; VAWA petition-ers

beneficiaries derivatives, see Derivative benefi-

ciaries substitution in petitions, 1054,

1077, 1088, 1362, 1414–15 BIA review, 1551–86 (see also Administrative review) abeyance, pending collateral attack,

1564 acquiescence to court decisions,

1556–58 (see also Deference to agency in-

terpretation (Chevron)) administrative notice, 795–96,

1585–86 affirmance without opinion (AWO),

see Affirmance without opinion amicus curiae brief, 1562 appeal from DHS decision, 1572 appeal procedure, 1558–66 Article III jurisdiction waived, 1561 asylum cases, see Asylees and refu-

gees Attorney General review, 1556 attorney sanctions, 546–47, 1024 beneficiary’s appeal, 1551 boilerplate decisions, 1579–80 bond appeal, 436, 1552 briefs, 1561–62 Burbano affirmance, 1582 certified questions, 1556 clearly erroneous review, 878–79,

1521, 1556, 1573–75, 1576–77 constitutional issues addressed,

1584 credibility findings, 1576–79

documentary evidence, 805–8, 1578 criticism of practices, 1565–66 de novo review, 1573 decision, notice of, 1565 delay in decision, 1565–66 departure during appeal, 1566–67 DHS decisions, not binding, 1583–

84 disciplinary consequences of frivo-

lous appeal, 1564 en banc decision, 1556 entry of final order challenged,

1568–69 estoppel, no authority to consider,

1538 factfinding, restricted, 1575–76 factors considered in decision,

1573–86 family-based petitions, 1551–52 final order of removal, BIA authori-

ty to enter, 1568–69 Immigration Law Advisor, 1584 index decisions, 1584 interlocutory appeal, 1558

judicial review of AWO, 1554–55 of BIA, not IJ, 1581–83 of IJ and BIA, 1582–83

jurisdiction, 1551–53 motion practice, 1569–72 new evidence, 1575–76 nonbinding decisions, 1583–84 notice of appeal, 1558, 1572 oral argument, 1565 precedent and other decisions,

1583–84 procedure, 1553–58 reconsider, motion to, see Recon-

sideration, subhead: Motions record on appeal, 1755–58, 1796 reissuance of BIA decision, 1560,

1565 remands, see Remand, subhead:

BIA reopen, see Reopen, motion to review of BIA or IJ decision, 1581–

83, 1787–89 scope of review, 1573–86 service officer appeal form, 1551–

52, 1572 single member panel, 1553 standard of review

clearly erroneous, 878–79, 1521, 1556, 1573–75, 1576–77

factors considered in BIA review, 1573–86

stay, 1564, 1568 streamlining, see Affirmance with-

out opinion sua sponte reopening, 1604–5 summary affirmance, 1582 summary dismissal, 1562–64 three-member panel, 1553, 1564 time to file

appeal, 1551–52, 1558–60 brief, 1561–62

transcripts, 1561–62, 1565–66, 1576, 1755, 1796

undue influence on BIA, 1558 untimely appeal, 1558–60 voluntary departure, reinstatement

on appeal, 1484, 1567–69 waiver of appeal, 1560–61 waiver of issue not raised before IJ,

1579 waiver of issue not seriously chal-

lenged, 1561 withdrawal of appeal, 1565

bilateral investment treaties, see E-2 visas

bill of attainder, 401 biometric identification (see also Security checks, subhead:

Inspection databases and pro-grams)

asylum applicants, 557–58, 771

BioVisa Program, 910 legislation requiring, 8, 14, 15 machine-readable passports, see

Passports birth certificates, 1238 birth in U.S., see Naturalization and

citizenship Bivens actions, see Attorneys’ fees;

Litigation blood tests, 1176, 1238 Board of Alien Labor Certification

Appeals, see BALCA review Board of Appellate Review (BAR),

1994 Board of Immigration Appeals, see

BIA review boilerplate decisions, see BIA re-

view bonds, 430–40 (see also Detention; Federal juris-

diction; Habeas corpus) administrative review, 1674 aggravated felons, 446–56 arriving alien problem, 204–6, 208–

9, 430, 434 asylum, 199–200, 434–35, 787–88 attorney representation solely for

bond, 434, 537–38 automatic stay of IJ bond, 207, 436,

448 Bail Reform Act, 445–46 BIA appeal, 436 breach, 430, 439–40 children and families, 435–36 circuit court, grant of, 439, 1791 constitutional challenges, 446–56 Cubans, 214, 631–32 deportation, 430–40, 446–60 detainers, 440–45 employer sanctions, 1916 employment authorization, 10, 206 exhaustion of remedies, 1717–18 expedited removal, 199–200, 207,

208–9 federal court, grant of, 439, 1791 final order (§241) vs. removal pro-

ceedings (§236), 641–42 habeas corpus, 200–201, 1656–57

inherent authority to grant bail, 1656–57

health-related reason, 209–10, 455–56 IJ, no jurisdiction to determine,

204–5, 448 impartial adjudicator needed, 455 inadmissible persons, 199–200,

204–22 Joseph hearing, 448 judicial review, see Judicial review juvenile, 199, 209–10, 216, 435–36 medical reason for release, 209–10,

455–56

bonds, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2284

procedure, 432–34 REAL ID Act, 438–39 redetermination, 433 removal

deportation, 426–27, 446–56 risk classification assessment

(RCA), see Parole supervised release, 432, 639–40 terrorists, see Terrorists and terror-

ism, subhead: Detention and bonds

venue, 1661 visa waiver, 434–35, 788 withholding of removal, 787–88

bonds, cont’d border procedures, 191–201 Brady material, see Discovery Brand X deference, see Deference

to agency interpretation bribery as aggravated felony, 279

bridging, see Change of status; Em-ployment-based immigration; Extension of stay

briefing schedule BIA, 1561–62 court of appeals, 10, 1789

bringing aliens to U.S., see Trans-porting/harboring

British subjects, see United King-dom

British Virgin Islands visa waiver, 939

broadcasters, see I visas; Special immigrants

brothers and sisters, see Siblings burden of proof, 578–84 (see also Standard of proof) abandonment of residency, 1285–88 access to visa documents, 580 acquisition of citizenship, see Natu-

ralization and citizenship aggravated felons, 578–81, 621 arriving aliens, 70, 201–2, 580 asylum cases, see Asylees and refu-

gees CAT, see Convention Against Torture clear & convincing standard, 578–80 conditional residents, 581, 1198,

1355 crimes involving moral turpitude,

98–99 criminal conduct, 581, 1470–72 employment-based, 1229 entry, 63–70 EWI, 580 family petitions, 1198, 1200–1203,

1214, 1229, 1237 Fifth Amendment, 559

firm resettlement, see Asylees and refugees

Fleuti doctrine, 68–70 immigrant visa petitions, 1229,

1237, 1242, 1246, 1248 judicial review, 583–84 lenity, rule of, 582–83 LPRs, 68–70, 201–2, 208, 225–26,

1229 marriage (conditional residence),

581, 1198, 1355 material misrepresentation, 145 medical cases, 77 nonimmigrants, 907, 914 presumptions, 580

against admission, 907, 1229 relief, 581–82, 1469 removal, see Removal proceed-

ings—deportation; Removal proceedings—inadmissibility

returning resident, 68–70, 201–2, 208, 225–26

special immigrants, 1229 unfair practices, see Unfair immi-

gration-related employment practices

vacated conviction, 311–12, 573 Bureau of Prisons change of security classification, 621 conditions of detention, 212, 217–20 detainers, 440–43 rules affecting detention, 217–20, 428 situs of detention, 428

business information inadmissibility of person disclosing,

175 business necessity, 1429–32

C

C visas (aliens in transit) C-1, 925, 1141 C-2 & C-3, 917, 925, 1130–31, 1141

Cambodians adjustment of status, 14, 1233 refugee status, 654

Canadians (see also NAFTA; TN visas) entry without visa, 921, 934–35 Indians, see North American Indians J visas, see J visas three- and ten-year bar, 123, 934

cancellation of removal, 1487–1529 (see also Suspension of deporta-

tion) administrative review, 1521, 1551,

1574 aggravated felons, 328, 621–22,

1489–90, 1494–96 battered spouses & children, 1511–13

change to prior law, 1487, 1493–96, 1495–96, 1513–14

clearly erroneous standard of re-view, 1521, 1556, 1573–75

crewman, 1490, 1509 Cuban Refugee Adjustment Act,

1487 discretionary eligibility, 1503–4 Eastern Europeans, 1519, 1524–25 effective date, 1493, 1517 eligibility, 1487–90, 1505–9 form for waiver, 1493 Guatemalans, 758, 1517, 1518 INA §212(c), 1493–1502 J visas, 1490, 1509 judicial review, see Judicial review LPRs, 178, 1487–1504

changes in current law, 1493–96 eligibility, 1487–90 outstanding equities not needed,

1503–4 procedures, 1493

motions to reopen, 1495, 1520 non-LPRs, 1505–29

changes in current law, 1513–14 eligibility, 1505–9 hardship criteria, 1514–17 procedures, 1493, 1517

numerical cap, 1513, 1517 rehabilitation, 1503, 1504 reopening, 1495, 1512 repapering, 481, 1528–29 residency, 1487–89 retroactive application of new law,

1492 Salvadorans, 758, 1518 St. Cyr regulations, 1498 stop-time rule, 1490–93 TPS, time not counted, 753 withdrawal of relief, 1467–68

cancellation of visas automatically under INA §222(g),

916–17 DHS cancellation, 204, 627

cap-exempt, see H-1B visas caps, see Numerical limitations;

specific visa types (e.g., H-1B) carrier liability custodial responsibility, 386 fines, 386–88

CARRP (Controlled Application Review and Resolution Pro-gram), 1973

categorical, modified categorical approaches

aggravated felony cases, 286–301 crimes involving moral turpitude,

93–97 CBP, see Customs and Border Pro-

tection

SUBJECT MATTER INDEX conditional residence

2285

Centers for Disease Control & Prevention, 73–74, 76

change of status, 917, 926–29 (see also specific visa) bridging, 127, 928 departure, effect of, 927–28, 957 H-1B cap, 957, 993–94 physicians, 1043 three- and ten-year bar, 127 visa waiver program, 942

changed circumstances asylum applications, see Asylees

and refugees chargeability, see Preference petitions Chevron deference, see Deference

to agency interpretation child abduction grounds of inadmissibility, 150–51

child abuse Adam Walsh Act, 23–24, 642,

1133–34, 1233 as aggravated felony, 249–52, 265,

268 as crime involving moral turpitude,

9, 101–2 as removal grounds, 247, 260–69 sexual abuse of minors

as aggravated felony, 249–52, 269 crime involving moral turpitude,

104–5 deportation ground for failure to

register, 248–49 family petitions denied, 1233 history, 23–24 INA §212(c) unavailable, 1502 K-1 unavailable, 1133–34 K-3 unavailable, 1138 sentencing, 375 violence crime, 265, 266, 269

VAWA, see VAWA petitioners Child Citizenship Act, 13, 82–83,

149, 235–36, 1190, 1961–63 child soldier recruiters, 26, 174,

235, 725, 734 Child Status Protection Act

(CSPA), 16, 896, 1169, 1219, 1222–28

asylees and refugees, 764, 896 diversity, 1224 employment-based, 1224 immediate relative, 1223 immigrants, 1228 INA §245(i), 1271–72 naturalization, 1223–24 retrogression, 1225

children (see also Juveniles; Minors; specif-

ic visa types) adopted, see Adopted children adulterine, 1174

aged-out, see Aged-out children asylum applicants, see Asylees and

refugees battered/abused children, see Child

abuse; VAWA petitioners bonds, 435–36 born abroad

citizenship, 1956–58 residency, 1288

court dependents, see Special immi-grant juveniles

de facto deportation, 404–5, 1537 defined, 1174–90 deportation grounds, 247, 249–52

(see also Aggravated felons; Crimes involving moral turpitude (CIMT); Crimes of violence)

deportation hearings, 590–92 detention, see Detention legitimated children, 1175–77 orphans, see Adopted children pornography, 100–101, 251, 273,

644, 1133–34, 1233 reason to believe charge, 118 recruitment of child soldiers, deporta-

tion for, 26, 174, 235, 725, 734 special immigrants, see Special im-

migrant juveniles stepchildren, 1137, 1174–75, 1180,

1962 unaccompanied, see Unaccompa-

nied children voluntary departure, 592 wedlock, born in or out of, 1175,

1183, 1503, 1956, 1957–58, 1962

Chile H-1B1 (fast track) visas, 1044–45

China (PRC) adjustment, 750 Chinese Exclusion Act, 3, 1955 Chinese Student Protection Act, 7,

750 deferred departure program, 750 Electronic Visa Update System

(eVUS), 196–97 choice of law circuit appeal, 1793–95

circus performers, 1086, 1089 citizenship, see Naturalization and

citizenship civil proceedings for criminal pur-

poses, 409–10 civil rights statutes, see Litigation class actions, see Litigation CLASS lookout system, see Securi-

ty checks, subhead: Inspection databases and programs

classified information asylum/withholding, 875

removal (deportation), 576–77, 622–23

removal (inadmissible), 518, 576–77 clear and convincing evidence

standard removal, 578–80

clear statement rule, 1707 closed hearings asylum, 781 battered spouse/child, 1199 special interest cases, 520

closed record, 577–78 closing argument, 392, 556, 588, 615 CNMI, see Northern Mariana Islands coercive population control, see

Forced abortion/sterilization collateral attack of criminal convictions, 237, 314–

15, 350, 581, 1665 in EOIR hearings, 314–15

of deportation order in criminal proceedings, 340–50 in failure-to-depart proceeding,

365–66 in subsequent deportation proceed-

ing, 1538, 1584 of foreign convictions, 320–21 in forfeiture proceedings, 359 in habeas proceedings, 1665, 1699 of summary exclusion order

in §275(a) (EWI) proceeding, 366 collateral estoppel, 161, 472–74, 610–

11, 627, 792–93, 1198, 1948 (see also Res judicata)

Colombia insurgents denial of visas to aiders/abettors,

176 committed to agency discretion

doctrine, 1750–52 common law marriage, see Mar-

riage and cohabitation Commonwealth of Northern Mari-

ana Islands (CNMI), see North-ern Mariana Islands

communicable diseases, see Conta-gious diseases

Communist Party affiliation grounds of inadmissibility, 173 naturalization, 1976, 1988

COMPETE Act, 24, 1085 conditional parole, see Parole conditional residence adjustment of status, 1191, 1197,

1259, 1336, 1529 burden of proof, 581, 1198, 1351,

1355 investor, 1336, 1351, 1354 judicial review, 1199–1200, 1359

conditional residence, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2286

marriage, 1191–1200 naturalization, 1203, 1355 removal grounds, 232, 1197–99,

1355 status retained while fighting re-

moval, 1197, 1355 conditional residence, cont’d conditions of confinement, chal-

lenging, see Detention Condor Visa check, 914 confidentiality amnesty, 578 asylum, 671–72, 711, 769, 792 battered spouse (removal hearing),

1171, 1195 breach of as a basis for asylum,

671–72, 769 family unity program, 1951 legalization/amnesty, 1950–51 petitions, decisions on, 1239–40 removal hearing, 1147, 1156, 1157 T visa, 22, 482, 1147 TPS, 757 U visa, 482, 1156

confinement, see Detention confiscation of U.S. real property as ground of inadmissibility, 175

Congress, see Federal authority to regulate immigration; History of immigration laws

Conrad 30, see Physicians conspiracy as aggravated felony, 281–82 as crime involving moral turpitude, 98

constitutional issues (see also Federal authority to regu-

late; specific classes of people; specific constitutional clauses, rights, and doctrines; specific contexts (e.g., Removal proceed-ings))

alienage, 42 benefits under INA, 48–49 deportable/removable aliens, 47–48 economic regulation, 42 enforcement, 39–41, 391–404 executive branch, 40–41, 1472–74 intermediate scrutiny, 38 limitations on federal powers, 38–49 lower level government officials, 41 physical location and constitutional

rights, 42–43 preemption, see Preemption rational basis test, 38–39 rights of noncitizens, 38–49 scope of review, 38–49 search and seizure, 406–7 statutory interpretation, 1811–12 strict scrutiny, 38 Taking Clause, 1834–35, 1844–45

consular processing fees for visas, 912 homeless cases, 1246 immigrant visas, 1245–49

advisory opinions, 1249 denial of visa, 1248–49 return of petition, 1248

judicial review, see Judicial review nonimmigrant visas, 907–16

advisory opinions, 913 BioVisa program, 910 denial of visa, 912–13 DHS involvement, 911 interviews, 910–11

Visa Interview Waiver Program, 910–11, 956

overstay inquiry, 915 return of petition, 920, 1368 security issues, 914–15 stateside processing, 912

spouse and child applying abroad, 909

waivers, 190 contagious diseases (see also AIDS/HIV) detention, 638 grounds of inadmissibility, 71–73 inspection, 194

contempt powers, IJ, 544 continuances corroboration obtained for asylum,

799 counsel obtained, 495–96, 521 INA §245(i), 496 judicial review, see Judicial review removal (deportation), 488–97 removal (inadmissible), 225 U visas, see U visas visa petition pending, 491–95,

1272–73 Controlled Application Review

and Resolution Program, see CARRP

Convention Against Torture (CAT), 650, 736–49, 774, 892

(see also Asylees and refugees; Withholding of removal)

abandonment of application, 749 acquiescence of public official,

741–44, 779 aggravated felony, 748 alternate theories, 850–51 application process, 749, 778 asylum, differences with, 778–80 asylum officers, 764–65, 772 burden of proof, 744–47, 778 centers to treat torture, 650 changed conditions, 794–96, 1585–

86, 1606–11 credible fear, 763, 775 deferral of removal, 642, 736–37,

778–80

detention, 780, 787–88 diplomatic assurance against tor-

ture, 385, 738, 748, 780 effective date, 736–37, 764 expedited removal, 198, 748 extradition, 385, 738, 760–61 IJ, procedures before, 780–82 INA §235(c), 201, 748, 780, 782 judicial review, 650, 892, 1635–36,

1702–4 political basis/motive not necessary,

741 procedure, 736–49, 778 REAL ID Act, 780, 1702–5 reinstatement of removal order, 624,

748 reopen, motion to, 737, 876–79 standard of proof, 744–47 State Department, 748, 780 stowaways, 201, 774 summary removal, 620 termination of, 748 terrorists, 623 torture, defined, 738–41 unlawful presence, 124 willful acceptance, 741–42 willful blindness standard, 742 withholding of removal, differences,

778–80 conversion preference petitions, 1220 religious, as asylum ground, 856–57

convictions admission of a crime, 568 Alford pleas, see Plea bargains All Writs Act, 327 appeal, 314 audita querela, 327 collateral attack, 314–15, 340–50,

496, 1665 collateral estoppel

removal proceeding, 472–74, 610–11, 627

commitment for treatment, not sen-tence, 236–37

coram nobis, 326–27 courts martial, 310 definition, 10, 307–13 early removal after conviction, 644 enhancement of sentence as convic-

tion, 313, 330–31, 380 expungements, 323–25 extension of status prohibited, 231 extradition, 385, 460, 760–61 facilitation, 241, 255, 258–59 facts behind conviction, 313 fast track pleas lawful, 319–20 Federal First Offender Act, 324–25 finality, 313–15 foreign, 99, 113, 240, 286, 320–21,

1812 forfeitures, 370 guilty pleas, see Guilty pleas

SUBJECT MATTER INDEX crewmembers

2287

habeas corpus, see Habeas corpus JRAD, see Judicial recommendation

against deportation judgment of guilt, not conviction,

310 juvenile delinquency, 89–90, 312–

13, 370 misprision, 111, 321–22 nolo plea, 307, 319, 545, 1498–99 nonimmigrant status affected, 231 out-of-status, 231 pardons, see Pardons Pickering, see Vacatur post-conviction relief, 310–12, 322–

28 pretrial intervention, 310 prisoner transfer treaty, 385 probation, see Probation proof of, in removal proceedings,

561, 566, 568–70 record of, 570–72 relief from, 322–28 Rule 11, 328 Rule 32, 328 Rule 35, 328 sentencing, see Sentences and sen-

tencing setting aside, 323, 327–28 solicitation, 111, 241–42, 321–22,

1133–34 speedy trial, see Speedy trial transfer of prisoner to home coun-

try, 385 treatment not sentence, 236–37 two offenses, convictions for

grounds of deportability, 239–40 grounds of inadmissibility, 117–18

vacation of sentence, see Vacatur withdraw plea, 320, 328 withholding of adjudications, 307 writs, 327

cooperation with government (see also S visas; T visas; U visas) agreement with prosecutor, 369

coram nobis, 326–27 corroboration, see Asylees and refu-

gees; Withholding of removal corruption exposing as grounds for asylum, see

Asylees and refugees ground of inadmissibility, 176–77

counsel, right to (see also Attorneys) access to client, 536–37, 785–86 accredited representative, 542–43 admissions by, 538–40 appearing on behalf of other coun-

sel, 486, 537–38 appointed counsel, 536 bond appearance only permitted,

434, 537–38 briefs as admitting conviction, 573

conflict, 1899–1900 criminal conduct, 418, 549 criminal pleas/Padilla, 316–19 deferred inspection, 202, 224, 522 detention, visitation by counsel,

219–20 DHS, representation before, 522–23 DOS, representation before, 523 due diligence in motion to reopen,

see Due diligence equitable tolling, see Equitable toll-

ing Form G-28, 219–20, 428, 537, 785–

86 harmless error rule, 525–28 in forma pauperis, 224, 536 ineffective assistance of counsel

affecting conviction, 316–19, 328 criminal pleas (Padilla), 316–19 due diligence, see Due diligence equitable tolling, see Equitable toll-

ing exhaustion, 533–34 Lozada requirements, 530–33 notaries, 530 relief unavailable, 524–27 remedy for, 533 removal proceedings, 523–35 reopen proceedings, 534–35

labor certification, participation in, 1445–46

law students, 542 limited appearance, 537–38 malpractice suits, 549 monitoring conversations with cli-

ent, 538 notice to counsel as notice to re-

spondent, 538, 602 protective order violation, 547 at refugee interviews, 656 registration, 541 right in asylum, 785–86 right in removal proceedings, 224,

486–87, 520–23 search warrant of attorney’s files,

418 service of papers and decisions up-

on, 602 stipulation by, 538–40 telephonic appearances, see Tele-

phonic and video technology time to obtain counsel, 485, 495–96,

521 transfer of client away from coun-

sel, 536–37 waiver of client’s appearance, 540 waiver of right, 535–36 withdrawal, 537–38, 540

country-condition reports (DOS), see Department of State

court dependents, see Special im-migrant juveniles

courts martial, see Convictions credibility determinations, 817–51 administrative record, BIA, 1576–79 airport interview inconsistent, 574–

75, 829–31 alcohol and drug use, 824 BIA standard, 820 brief testimony, reflection on credi-

bility, 850 confrontation, 823 court error, but denial upheld, 837–38 demeanor, 821, 1577 documents, standard for, 806–7, 1578 evidence, right to present, 850 failure to call witnesses, 556, 824–25 failure to seek third country asylum,

824 false statements, 831–32 false travel documents, 824 falsus in uno, falsus in omnibus,

823–24 forum shopping, 825 fraudulent documents, 833

not fatal to credibility, 805–6 geography, lack of knowledge, 825 hearsay, 825 IJ conduct, 825, 834–36 IJ error, reversal, 838–43 incompetent counsel, 827 inconsistency

on asylum application, 825–28 in asylum interview, 829–31

lack of credibility not fatal, 836–37 materiality of statement, 833 minor inconsistencies, 832–33 nontransfer of credibility finding,

850–51 perjury, 851 post-traumatic stress disorder, 556,

831 presumption of credibility, 820 REAL ID Act, 818–20 similarities in different applications,

828–29 speculation by IJ, 834–36 substantial evidence, 837, 838–50,

891, 1578–79 treatment by BIA, 1576–79 witnesses, failure to call, 556, 824–25

credible-fear determinations, 197–98, 774–75

(see also Asylees and refugees; Con-vention Against Torture (CAT); Withholding of removal)

crewmembers adjustment of status, 1144, 1253,

1266 asylum claims, 774, 782 cancellation of removal, ineligibil-

ity, 1490, 1509 D visas, 1142–44

crimes KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2288

crimes, 329–86 (see also Aggravated felons; Con-

victions; Crimes involving mor-al turpitude; specific crimes)

immigration-related crimes, 350–69

crimes involving moral turpitude (CIMT), 89–112, 237–40

accessory after the fact, 111 admission of crime, 89 alien smuggling, 110 assault, 91–92, 99–100 attempts, 89 burden of proof, 98–99 categorical approach, see Categori-

cal, modified categorical ap-proaches

child abuse/abandonment, 100–01, 103

consequences, 89 conspiracies, 89 conviction, defined, 307–13 definition, 89–99 deportation for, 237–40 divisible statutes, 96 driving under the influence (DUI /

DWI), 101, 103–4 drug offenses, 112–17 false statements, 108–9, 110 firearms, 101, 112 foreign convictions, 99, 113, 240 fraud, 108–11 against government, 108–11 inadmissible for, 89–112 inherent nature of crime, 92 juvenile crimes, 89–90 legally coherent crime, 98 minors, abuse of, 100–101, 104–5 misprision, 111, 321–22 modified categorical approach, see

Categorical, modified categori-cal approaches

money laundering, 108–10, 117 persons, crimes against, 99–104 petty offense exception, 90–91 political offense, 91 property, crimes against, 106–8 regulatory crimes, 111 sentence, 90–91, 236–37, 301–3 sexual offenses, 104–5 smuggling, 110 statutory construction, 89–99 waiver, 181–86 weapons offenses, 112

crimes of violence, 260–69 (see also Aggravated felons; specif-

ic crimes) criminal forfeiture, 370 criminal records disclosure

immigrant visa petitions, 1131–32, 1138, 1156, 1239

K-1 Petitioner, 1131–32 K-3 Petitioner, 1138

obtaining records through FBI, 513 proof of, 568–72 recourse solely to records and not

facts of criminal act, 93–97, 286–301

cross-chargeability, see Preference petitions

cross-examination right in removal proceeding, 549–53

Cubans (see also NACARA) adjustment programs, 896–99, 1232 arriving aliens, adjustment in removal

proceedings, 898, 1264–66 battered spouse/child, 897 Cuban Adjustment Act, 896–99

death of petitioner, 897 eligibility for §212(c) cancellation

relief, 898 Cuban Democracy Act, 17, 175, 898 EWI eligible for adjustment, 898 expedited removal, 199 family reunification parole program,

899 inadmissibility of person who confis-

cated or trafficked in property, 175 parole programs, 898–99 suspending admission, 177 wet-foot/dry foot policy, 657–58

custody, see Bonds; Detainers; De-tention; Federal jurisdiction; Ha-beas corpus

Customer Identity Verification (CIV), see Biometric identification

Customs and Border Protection (CBP)

(see also Security, subhead: In-spection databases and pro-grams)

detention standards, 220–21 establishment of, 17 Immigration Advisory Program,

192

D

D visas, see Crewmembers DACA / DAPA, see Deferred action

programs death of petitioner, 1235–36 automatic revocation ended, 1242–43 Cuban Adjustment Act, 897 EB-5 investors, 1354 family-based petitions

deceased service members, 1173, 1234

effect of spouse’s death, 1167–68, 1208–9, 1235–36

history, 15, 28 K-1 / K-2 petitions, 1132 K-3 / K-4 petitions, 1138 revocation of petition, 1234, 1242–43 widows, 1167–68

death of sponsor, see Affidavits of support

declaratory judgment action, 1673–74

Defense Department visas, 1038 deference (EB-5), see Employment-

creation visas deference to agency interpretation

(Chevron), 1772–87 Brand X deference, 1556–58, 1779–

80 exceptions to Chevron deference,

1780–87 agency actions contrary to regula-

tions, 1785 clear regulatory language, 1786 clear statutory language, 1784 Congress did not delegate to agen-

cy, 1780–83 constitutional question, 1786 construction of statute/regulation

impermissible, 1784 criminal state or federal law inter-

preted, 1786 discretion not given to DHS, 1786 expertise lacking, 1785 inconsistent interpretations by agen-

cy, 1785–86 interpretation unreasonable, 1784 litigation position, not interpreta-

tion, 1786 retroactivity questions, 1783 Skidmore / Christensen / Mead def-

erence, 1780–83 statutory construct, only issue,

1784–85 deferral of removal detention, 780, 788 withholding/asylum distinguished,

778–80 deferred action programs, 471,

1538–44 battered spouse/child, 1170 DACA (Deferred Action for Child-

hood Arrivals), 1539–44 DAPA (Deferred Action for Paren-

tal Accountability), 1543 family of deceased veteran, 1173 military and veterans family mem-

bers, 1543–44 deferred enforced departure

(DED), 750–51 deferred inspection, see Admission

and inspection

SUBJECT MATTER INDEX detention

2289

demeanor during testimony, 821, 1577

denaturalization, see Naturalization Department of Homeland Security

(DHS), 16–17 criminal conduct by DHS employ-

ees, reporting, 370 DHS-TRIP, see Security checks,

subhead: Inspection databases and programs

following BIA precedent, 1583–84 law establishing, 16–17 memoranda/decisions, effect on

BIA, 1583–84 right to counsel before DHS, see

Counsel, right to Secure Flight Program, see Security

checks, subhead: Inspection da-tabases and programs

Department of State (DOS) advisory opinions

asylum, 771, 780, 795–96 security related, 915 visa office, 913, 1249

cables and FAM, list, see Table of Authorities at pp. 2110–14

country-condition reports, 771, 810–17, 1585

disclosure of records, 919–20 nonimmigrant visas, generally, 909–

16 review

administrative, 981, 1994 judicial, 913, 919, 981, 1725–28,

1985–86, 1997–98 right to counsel before DOS, see

Counsel, right to security related, 914–15

Visa Office, 914–15, 1247–48 visa petitions, 1245–46

departure from U.S. (see also Travel) during BIA appeal, 609, 1566–67 during federal appeal, 1747–48,

1791–92 grace period for NIVs, 925 during motion to reopen, 1597–99 prior to hearing, 65, 68, 595 return if unlawfully deported, 1792

dependent H-1B employers, see H-1B visas

deportation, see Deportation grounds; Removal proceed-ings—deportation

deportation grounds, 230–307 aggravated felonies, 249–307

(see also Aggravated felons) bribery, 279 burglary, 265, 268, 272–73 change of address, 235 child abandonment, 247

child abuse, 247, 261, 265 child neglect, 247 child soldiers, recruit of, 235 conditional residence, termination

of, 232, 1197–99 crimes involving moral turpitude,

237–40 (see also Crimes in-volving moral turpitude)

criminal activity, 236–306 document fraud, 235 domestic injunction violation, 248 domestic violence, 246–47 drug abuser, 240 drugs, 240–43, 252–59 effective date of new deportation

grounds, 248, 303–6, 306–7 entry without inspection, 230–31 espionage, 233, 246 export of technology, 233 extrajudicial killing, 234 failure to disclose information, 231 failure to maintain medical controls,

231 failure to maintain status, 231–32 failure to register, 235 false claim of U.S. citizenship, 235–

36 falsification of documents, 235 fine, final administrative order for,

235 firearms, 243–45, 259–60 Foreign Agents Registration Act, 235 foreign policy, 234 former grounds, 233, 306–7 fraud, 235, 274–78 genocide, 234 high-speed flight, 240 human trafficking, 245 immoral purpose, importation of

persons for, 246 inadmissible at entry, 230 investor status, failure to maintain,

1351–52 marriage fraud, 232 military-type training, recipients of,

235 money laundering, 259 moral turpitude crime, 237–40 Nazis, 234, 728 Neutrality Act, 246, 446 overstay, 231–32 overthrow of U.S., 233 president, threatening the, 246 prostitution, eliminated, 249 protective order violation, 248 public charge, 233 public safety endangerment, 233 religious freedom violators, 235 sabotage, 233, 246 security, 233 sedition, 246 selective service laws, 246 sex traffickers, 245

sexual offender, failure to register, 248–49

smuggling, 232 stalking, 247–48, 266, 269 subversives, 233 terrorism, 233–34 theft, 269–73 torturer, 234 trading with the enemy, 246 travel restrictions during

war/national emergency, 246 treason, 246 two crimes involving moral turpi-

tude, 239–40 U.S. citizenship, false claims to,

235–36 in U.S. in violation of law, 231–32 violent crimes, 260–69 voting unlawfully, 236

deportation procedures, see Re-moval proceedings—deportation

depositions, see Discovery derivative beneficiaries (see also specific visas for princi-

pals (under subhead: family members))

of asylees, see Asylees and refugees priority dates, see Priority dates residency applications, 1149–50,

1169, 1196–97, 1222–29 withholding, no benefit, 728, 894

derivative citizenship, see Naturali-zation and citizenship

designated school official (DSO), 953 (see also F visas; J visas; M visas)

Detainee Treatment Act of 2005, 23 detainers in deportation, 440–45

detention, 204–22, 426–40 (see also Bonds; Detainers; Federal

jurisdiction; Habeas corpus) abuse of discretion standard, 211 aggravated felons

removal (deportation), 446–56, 787–88

removal (inadmissibility), 209 alternatives to, 432 arriving aliens, 199–200, 204–5,

208–10 asylum applicants, 210, 787–88 attorney access, see Counsel, right

to automatic stay of IJ bond, 207, 436,

448 Bail Reform Act, 445–46 Bivens actions, see Litigation bonds, see Bonds charge lacking, 425 children and families, 209–10, 216,

435–36 conditions of, 212, 217–20, 1825–26

detention, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2290

constitutional challenges to, 436–38, 449–56, 631–32, 1652–55, 1717–18

contagious disease, 638 Convention Against Torture, see

Convention Against Torture criminal proceedings, relation to,

444 Cuban parolees, 66 deportation, 426–40 discretionary decision challenges,

437–38, 455 DNA testing, see DNA testing due process/equal protection, 212 employment, 216 expedited removal, see Expedited

removal facilities, 428–29 Fed. R. Crim. P. 5(a), 340 final order (§241) vs. removal pro-

ceedings (§236), 641–42 forced feeding of detainee, 216 foreign policy reason, 638 Guantanamo, 216 hunger strike by detainee, 216 identification of detainee, 216–17 IIRIRA changes, 10 impartial adjudicator challenge, 455 inadmissible, 204–22 indefinite detention reviewed, 437–

38, 454 information disclose about detainee,

216–17 ISAP (Intensive Supervision Ap-

pearance Program), 432, 639–40

Joseph hearing, 448 judicial review, see Judicial review juveniles, see subhead: Children

and families (in this heading) location

of detainees, 217 of facility, 428–29 ICE’s Online Detainee Locator Sys-

tem (ODLS), 217 mandatory (post–removal order),

630–39 mandatory (pre-removal), 10, 446–

60 marriage in, 217, 1216 medical challenge to, 455–56 outside U.S., 216 parole, 209–10

revocation of, 214 payment for work, 216 presidential order on terrorism,

457–58 pretrial criminal proceedings, 444 prison sentence, relation to, 629–30 prolonged detention, 212–14 prosecutorial discretion, 427–28 REAL ID Act, 438–39 remedy for unlawful detention, 456

returning residents, 208 sexual assault in, 221 situs of detention, 428–29 solitary confinement, 218–19 Speedy Trial Act, 385–86, 401 standards

CBP, 220–21 ICE, 217–20

statutory challenges to, 449–56 stay on bond, 207, 448 strip searches, 429–30 supervised release, see Supervised

release telephone access to counsel, 219 terrorists, see Terrorists and terror-

ism transfer to another facility, 428–29 voluntary departure, detention pend-

ing, 1483 vulnerable people, see Prosecutorial

discretion detention, cont’d DHS-TRIP, see Security checks,

subhead: Inspection databases and programs

Dictionary of Occupational Titles (DOT), see Labor certification

diplomats adjustment of status, 1124–25, 1130 immunity, 1855 inadmissibility, 119, 1125–26,

1127–28 lawful permanent residency, 1127,

1130 for children of, 1166

overstays, 917 special immigrants (G-4s), 1128,

1144, 1327 visas, 1124–31

(see also A visas; G visas; N visas) disabled persons citizenship, 14, 1977–78 ground of inadmissibility eliminat-

ed, 89 discipline of attorneys, see Attor-

neys, subhead: Sanctions discovery A-files, 499 application, production by DHS,

518, 1469 Brady material, 517, 541, 1991 Dent request for A-file, 499 depositions, 513, 1898 employer sanctions cases, see Em-

ployer sanctions FBI records request, 513 fine proceedings (INA §274C),

1926 FOIA, see Freedom of Information

Act habeas proceeding, 1664 interrogatories, 513

Jencks Act, 514 loss of nationality, 1994 mandatory access to documents,

499 outside administrative record,

1756–57 plaintiff employment and personal

injury cases, 1932 pretrial conference, 223–24, 518,

1899 Privacy Act, 514–17 removal hearings, 350, 499–518 right to production of favorable evi-

dence, 517 right to records and documents,

517–18 subpoenas, see Subpoenas undocumented workers, issues in-

volving, 1932 unfair immigration employment

practices, 1943 visa record disclosure, 919–20

discretionary decisions reviewed, 1678–94

bond, 433–34, 437–38 INA §242(a)(2)(B)(i), 1687–94 INA §242(a)(2)(B)(ii), 1678–94

discretionary relief, see Relief; Removal proceedings—deportation

discrimination against aliens Bivens actions, 1831–34, 1868 civil rights statutes, 1826–27 constitutional issues, 37–49 E visas, 1116–17 Title VII, 1929–31 unfair employment practices, see

Unfair immigration-related em-ployment practices

disfavored group, see Asylees and refugees

dismissal of complaint under Rule 12(b)(6), 1818–19, 1942–43

district director deferred action, 1538–44 motions to reopen/reconsider, 1620

diversity immigrants, 1229–31 affidavits of support, see Affidavits

of support aged-out children, 16, 1224 electronic filing, see Electronic fil-

ing judicial review, see Judicial review

divisible statute aggravated felonies, 264, 286–301 crimes involving moral turpitude, 96

divorce battered spouse, effect on, 1169 I-864 effect on, see Affidavits of

support

SUBJECT MATTER INDEX duress defense

2291

marriage petition, effect on, 1133, 1135–36, 1138, 1140, 1169, 1174, 1194–95, 1198, 1200, 1202, 1206–7

sham, 1212 stepchild status, effect on, 1174

DNA testing of detainees, 429 for family-based petitions, 1238

docketing, see Executive Office for Immigration Review (EOIR)

doctors, see Physicians document fraud, see Documents,

subhead: unlawful acts involving documents

documents authentication, see Asylees and ref-

ugees corroboration, see Asylees and ref-

ugees; Withholding of removal credibility, see Credibility determi-

nations date document is considered “filed”

with USCIS, 921 duplicate documents

approval notice (I-824), 910, 913, 1262

labor certification, 1372, 1414 prevailing wage determination,

1014 evidence of criminal convictions,

570–72 protective orders, 577–78, 875,

1259, 1468 retention by

asylum officer, 771 ICE officer, 423

unlawful acts involving documents destruction of official documents,

364 document abuse as unfair immigra-

tion employment practice, 1937–38

document fraud, 108–9, 139, 187–89, 235, 278–79, 360–62, 388–91, 805–6, 2002

establishing commercial enterprise to evade immigration laws, 363

failure to disclose role as document preparer, 365, 2002–3

fraud related to ID documents, 21, 108–9, 1932–33, 2002

not fatal to credibility, 805–6 trafficking in false documents, 381

domestic partners, see Marriage and cohabitation

domestic violence, see Child abuse; Spousal abuse; VAWA petitioners

domestics au pairs, see Au pair program B-1 status, 947–48

employment authorization, 950 labor certification, 1431

domicile affidavit of support, 80–81 cancellation of removal, 1488–89,

1505 divorce, 1206–7 INA §212(c), 1493–94 INA §212(h), 181–86 minors, 1489 nonimmigrant status, 908 suspension, 1525

DOS, see Department of State double jeopardy employer sanctions, 1917 fine proceedings under INA §274C,

390, 1917 prosecution for entering U.S. and

found in U.S., 335, 339 removal proceedings, 367, 401,

1584 driver’s licenses crime involving moral turpitude for

fraudulent use, 108 employer sanctions, 1880 REAL ID Act, 21, 1296 seizure of, 422

drones at the border, 421 drug offenses abuser/addict, 76–77, 190, 240 admission, basis for inadmissibility,

76–77, 114 as aggravated felony, 252–59 assister/abettor, 115–17 constitutionality of “reason to be-

lieve”, 117 crimes involving moral turpitude,

112 deportation for, 240–43, 252–59 inadmissibility for, 76–77, 112–17 inadmissible even if conviction va-

cated, 313 inadmissible for reason to believe,

115–17, 230 spouse and child inadmissible, 117

juvenile exception, 312–13 marijuana

no deportation under §237(a)(2)(B)(i), 242–43

single possession, not subject to de-portation, 242–43

waiver, 117, 181–86, 1544–45 paraphernalia, 113–14, 117, 181–86 petty offense exception not availa-

ble, 113 reason to believe, 115–17, 313 recidivists, 258 solicitation, 111, 241–42, 254, 321–

22 specific intent not required, 113

trafficking, 112, 115–17, 241, 252–59, 375, 644

two drug possessions as trafficking, 258

Travel Act, 242, 258–59 waiver

of §212(a)(2)(a)(i)(II), 117 under §212(c), 1493–1502 under §212(h), 117, 181–86, 1545–

46 under cancellation of removal,

1487–1529 simple possession, 117

drug paraphernalia, 113–14, 117, 181–86

dual citizenship, see Naturalization and citizenship

dual-intent doctrine, 908, 939, 990, 1080, 1087, 1280

due diligence for equitable tolling in motions to

reopen, 1613–14 in absentia orders, 596–97

due process (see also Constitutional issues;

Fifth Amendment; Judicial re-view; specific context of claim)

detention decisions, 204–9, 210–14, 217–20, 449–56, 629–39

labor certification, 1380, 1402, 1428 LPRs, 46–47, 68–70, 204–5, 210–

14, 225–26, 449–56, 629–39, 1165

marriage in removal proceeding, 1200–1203, 1216

relief, grace or right, 48–49, 399–400, 1472–74

in removal (deportation), 47–48, 391–402, 629–30

in removal (inadmissible), 45–47, 63–68, 212

DUI / DWI as aggravated felony, 268 as crime involving moral turpitude,

101, 111 not as CIMT, 103–4

naturalization, 1973 as “particularly serious crime” bar

to asylum, 731 physical or mental disorder, inad-

missible for, 75 revocation of NIV, 918

duress defense to escape from detention, 366 to forfeiture, 358 to reentry, 334 to smuggling, 356 to terrorism and related offenses,

see Terrorists and terrorism

E visas KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2292

E

E visas, 939, 1107–18 (see also E-1 visas; E-2 visas; E-3

visas) adjustment of status, 1256 admission, 1109, 1115 business plans, 1108 change of status, 1115 country listing (table), Apdx L definition, 1107–8 discrimination in employment,

1116–17 dual intent, 908, 1108 dual nationality, 1109 E in lieu of H-1B, 1115 employment for spouse, 1116 employment with subsidiary, 1115 expropriation of U.S. property, 1117 job shop employees, 1115 LPRs not eligible as owners, 1109 multiple employees, 1115 nationality, 1108–9 petition, substantive changes on,

1115 reciprocity, 1115 strikes, 1116

E-1 visas (treaty traders), 1109–11 criteria, 1109–11 embargo’s effect on, 1111 employees, 1111, 1114 family members, 15, 1116 intending immigrant, 908, 1108 nationality of company, 1108–9 principal trade, 1110 procedures, 1115–16 trade, 1109–110

E-2 visas (treaty investors), 1111–13 bilateral investment treaties, 1107–

8, Apdx L commercial enterprise, 1112 criteria, 1111–13 development and direction of the

business, 1113 employees, 1114 escrowed, 1112 family members, 1116 intent to depart, 1108 investment, 1111–13 marginality of investment, 1113 nationality of investment, 1108–9 nonprofits not permitted, 1112 Northern Mariana Islands, see

Northern Mariana Islands procedures, 1115–16 source of funds, 1112

E-3 visas (Australian Special Oc-cupation), 1117–18

employment authorization for bat-tered spouses, 1921

Eastern Europeans, see NACARA

EB-1 visas (priority workers), 1301–9

expert testimony, 1302, 1303 extraordinary ability, 1217, 1301–5 lawyers, not eligible for EB-1, 1305 multinational executives and man-

agers, 1217, 1307–9 O visa vs. EB-1, 1305 outstanding professors and re-

searchers, 1217, 1305–7 EB-2 visas (advanced-degree pro-

fessionals or persons of excep-tional ability), 1310–19

exceptional ability defined, 1312–13 expert testimony, 1313 NIWs, see National interest waivers physicians, see Physicians

EB-3 visas (skilled workers, profes-sionals, other workers), 1319–21

EB-4 visas, see Special immigrants; specific types of immigrants

EB-5, see Employment-creation visas

effective assistance, see Counsel, right to

effective dates, see substantive head-ings

E-filing, see Electronic filing El Salvadorans refugee/parole program for minors,

656 electronic filing consular applications (DS-160),

909, 1137 diversity immigrants, 1230–31 ELIS, 921 I-9s, 1877–78 labor certification (ETA-9089),

1374–75 labor condition application (ETA-

9035e), 1015 USCIS, 920

electronic notification, 920–21 electronic surveillance as evidence, 408 wiretaps, 420

embargoes effect on E-1, 1111 effect on employment-based peti-

tions, 1365 Employ American Workers Act,

28 employee’s labor rights, 998, 1924–

33 employer sanctions, 1873–1919 agent as employer, 1874–75 agricultural employers, 1875 ALJ decision, 1907 attorney conflict, 1899–1900

attorneys, sanctions, 1899, 1949 attorneys’ fees, 1919, 1949 audits, 1893–94, 1896 B-1 not subject, 1876 bankruptcy, no stay in, 1897, 1908 bond, indemnity, 1916 casual hires

defense, 1876, 1906 defined, 1874

civil penalties, 1907–8 consent order, 1907 constitutional challenge, 1894–95,

1906–7, 1919 constructive knowledge, 1884–86 continuing employment defined,

1882–83 copies of documents, 1878–79 coverage of Act, 1873–75 criminal penalties, 365, 1887, 1916–17 debarment, 1916 defenses, 1879, 1897, 1900–1907 discovery, 1898–99 documentary requirements, 1878–79 double jeopardy, 1917 effective dates, 1875–76, 1919 electronic verification, 1887–92 employee defined, 1873–74 employer defined, 1874–75, 1917–18 employment, continuity of, 1882–83 employment, incident to status, 1886 entity defined, 1917–18 E-Verify, 1887–92 extension of stay as affecting em-

ployment, 1873, 1883 federal government liable, 1875 Fifth Amendment, 1895–96, 1898,

1906–7 final order, 1907 fines, 1896, 1907–08 good-faith defense, 1879, 1900–05 grandfathered employees, 1875,

1906 hearings, 1897–1900

affirmative defense, 1897 counsel, 1899 decision, 1907 default, 1897 dismissal, 1897 evidentiary rules, 1899 improper charges, 1897, 1906 initiation of, 1897 record, 1899 summary decision, 1898–99

hiring defined, 1873 I-9s, see Forms IIRIRA changes, 1875 IMAGE program, 1892 indemnity bond penalty, 1916 independent contractors, 1874, 1906 inspections, 1894–95 investigation, 1893–94 judicial review, see Judicial review knowledge requirement, 1884–86

SUBJECT MATTER INDEX employment-based immigration

2293

labor certification, filing as basis for knowing violation, 1884–85

mitigation of fines, 1908–14 Monitoring and Compliance

Branch, 1893 multi-employer bargaining unit,

1906 name change / false identity, 1879 NLRA, 1886 no-match regulations, 1885–86,

1892, 1893 Northern Mariana Islands, see

Northern Mariana Islands notice of intent (to fine), 1896 OCAHO review, 1591, 1771, 1918 paperwork violations, 1900–1905,

1908, 1914–16 pattern-or-practice violations, 1916–17 penalties, 1907–8

ability to pay, 1912–13 deterrent effect, 1913 employees authorized to work,

1911–12 good faith, 1900–1905 history of violations, 1912 mitigation, 1908–14 proportion of fine to conduct, 1913 size of employer, 1909–10

preemption, 1891, 1919 pre-population of I-9, 1877–78 random audit, 1893–94 receipt in lieu of document, 1878 recruiters for a fee, 1873, 1887 referring for a fee, 1873, 1887 rehire, 1883 release of I-9 prohibited, 1878 remedial orders, 1908 replacement document, 1878 retention of I-9s, 1881–82 reverification, 1882–83 safe-harbor, 1885–86 SAVE program, 1893 search warrant, 1895–96 selective enforcement, 1906–7 settlement, 1907 Social Security false identification,

see subhead: Name change (in this heading)

standard of proof, 1886–87 statute of limitations, 1906 subcontractors, 1890–91 subdivisions, liability of, 1917–18 subpoenas, 1895, 1898 substantial compliance defense,

1904–5 successor employers, 1875 three-day business requirement,

1876–77 three-day notice for inspection,

1894–95 time for checking documents, 1876–77 time for firing unauthorized em-

ployees, 1884

ultra vires regulations, 1906 unfair immigration employment

practices, 1879 verification requirement, 1875–82,

1889–90 violations, 1883–87 warrantless search, 1896

employment authorization, 933–34, 1919–24

adjudication within 90 days, 1923 adjustment applicants, 1280 administrative closure of case, 587,

1921 advance parole and EAD in one

document, 1278 application for, 1923 Armed Forces enlisted, 1920 asylee (granted), 894 asylum applicants, 788–91 automatic 240-day extension, 1921–

22 battered spouses/children, 1126,

1127, 1129, 1170, 1921 A, E-3, G, and H nonimmigrants,

1921–22 beneficiary awaiting priority date,

1251–52, 1372 bond, 206 cancellation, 1921, 1923 conditional residents, 1920 constitutional right, 1924 DACA, 1541, 1922 denial as abuse, 1767 deportation, 1922 discretion to deny, 1920–21, 1923 economic necessity, 1923 employer specific, 1920 employment authorization docu-

ment, 1919–24 family unity program, 1920–21,

1951 H-1B employees, 1037, 1920 (see

also H-1B visas) history, 1919–20 incident to status, 1920 interim employment authorization,

1923 judicial review, see Judicial review L-1 employees, 1105–6, 1920

(see also L visas (intracompany transferees))

labor certification, 1372 nonimmigrants, 933–34, 1921–22

(see also specific visa) portability, 1363–65, 1921–22 procedures, 933–34, 1923 professional athletes, see Athletes;

O visas; P visas prosecutorial discretion, 466, 1922 removal proceedings, 1922, 1923 request permission to work, 1920–21 revocation, 1923 spouse of E visa holder, 1116

spouse of L visa holder, 1106 standard of review, 1767, 1923 strike provisions, 1926 students, 1922 (see also F visas; J

visas; M visas) time to adjudicate, 1923 verification, see Employer sanctions voluntary departure, 1922

employment verification, see Em-ployer sanctions; E-Verify

employment-based immigration, 1216–17, 1301–1462

(see also Immigrant visas; Labor cer-tification; Preference petitions; Special immigrants; specific visas and professions)

§245(k), see subhead: Adjustment of status (in this heading)

ability to pay by employer, 1440 adjustment of status, 1366

§245(k), 1274–76 legislative history, 11

portability, 1362, 1363–65 administrative review, 1368 (see

also Administrative review) approvals, 1362–63 authorization to work, see Employ-

ment authorization backlogs, 1251–52, 1310, 1319 bridging/stacking AOS application,

1275–76 burden of proof, 1229 change in employer, 1316, 1362 change in petition, 1361 copies submitted to USCIS, 1361,

1372, 1414 court dependents, see Special Im-

migrant Juveniles death of beneficiary, effect on de-

rivatives, 1367 DHS review, generally, 1361–72 embargoed countries, 1365 employee’s intent to work at job, 1371 employer not needed, 1301–2, 1321 employer’s ability to pay wage, see

Labor certification expedited processing of petitions,

see Expedited processing of cases; Premium processing

extraordinary ability, see EB-1 visas intent to work at certified job, 1371 judicial review, see Judicial review national interest waivers, see Na-

tional interest waivers NOIDs, see Notice of intent to deny petition process, 1361–68 portability, 1363–65

180-day period, 1363–64, 1365 multinational executive covered,

1365

employment-based immigration, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2294

portability, cont’d same or similar occupation defined,

1364–65 self-employment as basis for, 1365 successor employer, 1363

priority dates, see Priority dates request for evidence (RFE), 1371–

72 return of petition to DHS, 1248,

1368 revocation, 1242–43, 1366–67,

1461 RFEs, see Requests for evidence Schedule A, see Labor certification subsequent employer, 1363–65 successor in interest, 1363 withdrawal of petition, 1367

employment-based immigration, cont’d employment-creation visas (EB-5),

1336–60 adjustment of status on different

basis, 1352 allocation of jobs, 1344 application process, 1349–52 bridge financing, 1338 business plan, 1342, 1350 children of investor, 1336, 1351,

1354, 1355 conditional residency, 1336, 1351–

52 death of investor, 1354 deference policy, 1352–54 demand multiplier, 1346–47 employment, full time, 1342, 1343 employment creation, 1342–44,

1350 erroneous approval, 1353–54 ethical DHS issues, 1355–56 evidence required, 1349–51 forms and requirements for filing

I-526 (immigrant petition), 1349–51 I-829 (petition to remove condi-

tions), 1351 guaranteed returns, 1341 hotels, 1347 IMPLAN, 1344, 1346 investment, 1338–39, 1340–42 legislation, 1360 litigation over program features,

1359–60 loans, 1341 malpractice by counsel, 1359 material change, 1352, 1354 multiple investments, 1339 multiple investors, 1342 naturalization, 1355 new commercial enterprise, 1337–38 original documents to USCIS, 1361 partnerships, 1342 post-submission changes to petition,

1361 promissory notes, 1340–41 quota backlog, 1336

redemption agreement, 1341 REDYN, 1346 regional centers, 1344–49, 1351 REMI, 1346 removal of conditional residence

status, 1351–52 removal proceedings, 1355 reserve payment, 1341 revisiting I-526 during I-829 pro-

cess, 1360 RIMS II, 1344, 1346 secured loans, 1341 securities law, 1356–59 source of funds, 1339, 1350 spouse of investor, 1354, 1355 targeted employment area, 1339–40,

1350, 1351, 1352 tenant-occupancy, 1353 termination of status, 1354–55 time period for job creation, 1343 travel during I-829 pendency, 1352 troubled business, 1344, 1350 trusts, 1341

employment/labor rights, 1924–33 encouraging illegal aliens, see

Transporting/harboring Enhanced Border Security and

Visa Entry Reform Act, 15–16 E-notification, see Electronic notifi-

cation entertainers (see also O visas; P visas) EB-1 immigrants, 1301–5 EB-2 immigrants, 1313 H-2B visas, 1075 labor certification, 1454–55

entrapment, 339–40 entry, see Admission and inspection entry without inspection (EWI) battered spouses/children, waivers

for, 135, 136–37, 1171–72 criminal and civil penalties, 366 Cubans, 898 deportable, 230–31 expedited removal, 197–201 inadmissibility, 63–64, 134–37 parole permitted, 64–65 unlawful presence, 123

EOIR, see Executive Office for Immigration Review

Equal Access to Justice Act (EAJA), see Attorneys’ fees

equal protection, 38–49, 402–4 (see also Constitutional issues; spe-

cific context of claim) asylum claims, 782

equitable tolling distinguished equitable estoppel,

1538 FTCA, 1827–28

habeas corpus, 1748 in absentia orders, 595–98, 1614–

15, 1765 ineffective assistance of counsel,

596–97, 1611–15 lottery, 1231 motions to reopen, 1611–15 NACARA, see NACARA relief from removal, 1474–75,

1520–21 special cancellation, 1520–21 unfair immigration employment

practice, 1941 escape in removal proceedings, 366 espionage, see Deportation grounds;

Inadmissibility grounds ESTA (Electronic System for

Travel Authorization), see Se-curity checks, subhead: Inspec-tion databases and programs

estoppel, 339–40, 472–74, 1536–38 distinguished equitable tolling, 1538 exhaustion not necessary, 1717

E-Verify, 1887–92 evidence abandonment for failure to present,

578 abstract of judgment, 574 administrative notice, challenge to,

1585–86 administrative notice of conditions

(asylum), 795–96 admission, 566–68 amnesty applications, use as evi-

dence, 578 arrest reports, 573–74 asylum applications, use of as evi-

dence, 575, 765 asylum cases, see Asylees and refu-

gees, subhead: Evidence attorney’s statements in briefs, 573 authentication of documents, 566–68 battered spouses, 578, 1171, 1512 briefs, statements in as evidence,

297, 573 classified information, 518, 576–77,

875 close of hearing, 578 criminal convictions, 568–72 document fraud not fatal to credibil-

ity, 805–6 expert testimony, see Expert testi-

mony foreign convictions, 1812 foreign law, 575–76 hearsay

removal proceedings, 560–65 visa processing, 911

I-9s, see Forms incompetents, 590–94 interview statements, 574–75

SUBJECT MATTER INDEX F visas (academic students)

2295

minors, 590–92 negative inference for failure to pre-

sent, 578 offer of proof, 576 police reports, 573–74 polygraph, 555 presentence report, 572–73 presumption of regularity, 576 protective order information, 577–78 rap sheet, 574 record of conviction, 570–72 regularity, presumption of, 576 relevance in discretionary relief,

1483, 1503–4 removal proceedings (deportation),

499–518, 549–56, 560–78, 781 removal proceedings (inadmissibil-

ity), 225–26, 499–518, 549–56, 560–78, 781

right to respond, 796 sealed information, 577–78 self-incrimination, 559–60 sentencing factor notations, 573 sequestration of witnesses, 578 suppression of, 405–10, 558–59 vacated conviction, 573

EWI, see Entry without inspection Ex Post Facto Clause, 400–401 exceptional ability, see EB-2 visas;

Labor certification exceptional and extremely unusual

hardship, see Cancellation of removal, subhead: Non-LPRs (hardship criteria)

exceptional hardship (§212(e) waiver), 181, 976–78

exchange visitors, see J visas exclusion grounds, see Inadmissibil-

ity grounds exclusion hearing and procedures,

see Removal proceedings—inadmissibility

exculpatory evidence, disclosure of Brady rule, see Discovery

Executive Office for Immigration Review (EOIR)

docketing, 470, 1329–30 Internet Immigration Information

(I³), 518 practice manual, 553–54

executive orders list of EOs, see Table of Authorities

at p. 2110 suspending admission, 176–77

executives, see EB-1 visas; L visas exhaustion of administrative rem-

edies, 341–42, 513, 1662–63, 1707–25

AWO, see Affirmance without opinion

bond, 1717–18 exceptions to exhaustion require-

ment, 1717–24 citizenship case/claim, 1720 detention case, 1717–18 estoppel, 1723–24 failure to inform of relief, 1724 futility, 1722–23 intertwined issues, 1724 irreparable harm, 1724 legal issue arose after briefing, 1721 manifest injustice, 1721 no review procedure, 1717 pure legal question, 1721 raised fairly below, 1724 regulatory challenge, 1721 removal proceedings only, 1720 review procedure not mandatory,

1718–20 timeframe for review lacking, 1724 waiver of appeal not voluntary,

1724 habeas corpus, 1662–63 ineffective assistance of counsel,

533–34 torture, 1842–43 voluntary departure, 1486

expatriation, see Naturalization and citizenship, subhead: loss of citi-zenship

expedited processing of cases, 930, 1239, 1351, 1366

(see also Premium processing) expedited removal administrative review, 200–201 credible fear, 197–98, 206, 208–9,

764, 774 criminal aliens, 619–22 Cubans, 199 deportation, 197–201 detention, 199–200, 207, 208–9 exceptions, 197–99 judicial review, 200–201, 1666,

1802 minors, see Juveniles parole, 199–200 reasonable fear, 775 stay of removal, 201 visa waiver program, 199

expert testimony asylum, see Asylees and refugees EB-1 petitions, 1302, 1303 EB-2 petitions, 1313 labor certifications, 1427 O visas, 1082 P visas, 1088, 1089 removal proceedings, 554–55

Export Control (EAR & ITAR) violations, 152–53, 998, 1045, 1083, 1104

expropriate U.S. property E treaties, 1117 grounds of inadmissibility, 175

expungement defer removal proceeding, 496 effect on criminal conviction, 323–25

extension of stay, 925–26 (see also specific visas) bridging, 127, 925–26 cancellation of visa (INA 222(g)), 917 three/ten-year bar, 127 travel while extension is pending, 926 visa waiver program, 925, 942

extradition asylum claims, 760–61 CAT, application of, 385, 738, 760–61 without extradition treaty, 385

extraordinary ability, see EB-1 visas; O visas

extraordinary circumstances asylum cases, 722–24

extraordinary rendition, 1841 extreme hardship INA §212(a)(9)(B)(v) waiver, 128–34 INA §212(h) waiver, 181–86 INA §212(i) waiver, 187–89 provisional waiver, 131–34 standard of review, 1762 suspension, 1514–17, 1526

F

F visas (academic students), 954–67 absence abroad, 964 B-1/B-2 prohibited from attending

school, 965–66 cancellation of visa under INA

§222(g), 966 change of address, 967 change of status

from B-1/B-2, 965–66 to H-1B (cap-gap), 957, 993–94

commuter students from Canada and Mexico, 956

consular procedure, 956 criteria, 954–56 duration of status, 956–57 employment, 958–64, 1922

Haitian students, 959 Syrian students, 959

entry time after obtaining visa, 956–57 extension of stay, 966 family, 955, 967 fee paid to SEVIS, 952–53, 955 financial ability to attend school, 955 full course of study defined, 955–56 grace period of 60 days, 957 H-1B cap, see subhead: Change of

status (in this heading)

F visas, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2296

inadmissible because of visa abuse, 139–40

in-state tuition, see Students international organization, intern-

ship with, 959 online classes, 955 optional practical training, 960–64

STEM degrees eligible for OPT ex-tension, 961–62

out of status, 965 overstay, 966 procedures, 956 public school attendance prohibited,

954–55 reduced course load, 955–56 reinstatement, 966 school certification by ICE, 967 school ranking irrelevant, 954 SEVIS, see SEVIS Social Security card, 964 status, out of, 965 strikes, 964 subject of study irrelevant, 954 transfers, 958 tuition, in state, 953–54 undocumented students, see Stu-

dents F visas, cont’d visa abuse, 139–40 withdrawing from school, 958

Facebook, 1211 facilitation of crime, 241, 255, 258–59 factual findings reviewed, 881–93 by BIA, 1556, 1573–76 by federal courts, 1769, 1770 good moral character, 1478

failure to appear asylum, 770, 781 relief unavailable, 595, 1467–68 removal, 137, 226–27, 594–609,

1467–68 voluntary departure, 1467–68

failure to depart after final removal order, 365–66

Absconder Apprehension Initiative, 642–43

fines, 391 voluntary departure, 1481–83

Fair Labor Standards Act, 216, 1927–29

false claim to U.S. citizenship, see Naturalization and citizenship

false statements, 360–62, 361–62, 364–65, 773–74, 831–32, 1887, 1968–69, 2000–2003

Family and Medical Leave Act, 1032, 1036

family detention, see Detention, subhead: Children and families

family unity, see Legalization

family-sponsored immigration, 1165–1229

(see also Immigrant visas; Lawful permanent residents; Preference petitions)

accompanying, defined, 1218 adverse evidence, respond to, 1241 affidavit of support, see Affidavits

of support (I-864) aged-out child, see Aged-out chil-

dren approval, 1240–41 Armed Forces, family of deceased,

1173 battered spouses/children, see

VAWA petitioners BIA procedural issues, see BIA re-

view birth certificates, 1238 burden of proof, 1229

revocation of petition, 1242 termination of conditional resident

status, 1198 child defined, 1174–90 confidential evidence, 1240 consular processing, 1245–49 conversion, 1220 copies of documents to USCIS,

1237 criminal background of petitioner

as a basis for denial, 1233–34 disclosure to beneficiary, 1239

derivative status, 1217, 1222–29 divorce, sham, see Divorce DNA testing, see DNA testing eligibility

at time of filing/approval, 1239 expedited processing of petitions,

1239 fee waiver, 1238–39 forms, force of law, 404, 1237–38 immediate relatives, 1167

children, 1174–90 de facto deportation of, 404–5 parents, 1167, 1191 spouses, 1191–1216 widow(er)s, 1167–68, 1208–9

inadmissibility not a basis to deny petition, 1240

investigation as basis to hold peti-tion, 1239–40

marriage-based petitions adjustment of status, 1191–1216

(see also Adjustment of status) administrative review, 1199–1200 admissibility, presumption against,

1229 approval of petition as presumption

of validity of marriage, 1209 cohabitation, not required, 1207,

1211 common law marriage permitted,

1205

conditional residency, 1191–1200 death of spouse, effect of, 1167–68,

1208–9 divorce, effect of, see Divorce fraud, see Marriage fraud INA §204(c), 1212–15 judicial review, 1199–1200 living apart, petition not invalid,

1207, 1211 minor (under 18) as petitioner, 1209 naturalization, 1203 outside U.S., 1216 permanent residency, 1191–1203 physical presence in U.S., 1197 procedures, 1191–1203 proof of bona fide marriage, 1210–

12 proxy marriage, 1207 public policy issue, 1206 relation back doctrine, 145–46, 619,

1206 religious marriage, 1205–6 removal proceedings, 1197–99,

1210 marriage while in proceedings,

1200–1203, 1256–58 reopen, motions to, 1256–58, 1530,

1602–3 same-sex marriages, see Same-sex

marriages separation, effect of, 1207 sham divorce, 1200, 1212 sham marriage, 1209–12 status retained while fighting re-

moval, 1197, 1283 subsequent marriage, 1203 termination, 1197 test for validity, 1210–12 transgender marriage, 1204–5 validity of marriage, 1203–4 veteran’s spouse, 1173 viability of marriage, 1207–9 void marriage, 1205 waiver of joint filing, 1192–96

military, family of deceased, 1173 minor, sexual abuse of as bar to pe-

tition, 1233 nonpreference category, 1191–1216 originals submitted to USCIS, 1237 parents, 1167, 1191 petition process, 1233–45 petition returned by DOS to DHS,

1248 petitioner precluded from filing,

1233–34 preferences categories

1st (unmarried son or daughter of USC), 1217

2nd (spouse or unmarried child of LPR), 1217

3rd (married son or daughter of USC), 1217

4th (sibling of USC), 1217

SUBJECT MATTER INDEX federal jurisdiction

2297

presumption against admissibility, 1229

priority dates, see Priority dates records unavailable, 1237 replacement visa, 1249 rescission, 1280–81 return of petition to DHS, 1248 revocation, 1242–43 sexual abuse of minor barring peti-

tion, 1233 siblings, 1180, 1181, 1191, 1217 venue for filing I-130/I-360, 1236 widow(er)s, 1167–68, 1208–9

farmworkers, see H-2A visas; Le-galization

fashion models, 1038 fast-track guilty pleas, 319–20 H-1B1s, see H-1B1 visas premium processing, see Premium

processing FBI as immigration agents, 426 records requests, see Discovery

FDNS, see Fraud Detection and National Security Directorate

federal authority to regulate im-migration, 37–49

(see also Preemption) based on distinction among aliens,

43–48 alienage-based discrimination, 42 physical-location-based, 42–43 race or national-origin discrimina-

tion, 41–42, 44–45 sex discrimination, 45

enumerated constitutional powers, 37

executive powers, 40–41 implied constitutional powers, 37–38 legislative powers, 39–40 lower-level officials, 41 standards of review, 38–39

federal employer identification number (FEIN)

H-1B, 1005, 1014–15 labor certification, 1375, 1377, 1422

federal jurisdiction, 1625 –1821 (see also Judicial review) abuse of discretion, 1759–68 adjustment, 1635, 1641, 1691–94,

1767 under HRIFA, 1233 I-130 petition denial, 1241–42 marriage fraud finding, 1211–12 under NACARA, 1232

Alien Tort Claims Act, 1835 All Writs Act, 327, 1801 Anti-Terrorism Act of 1991, 1844 Anti-Terrorism and Effective Death

Penalty Act (AEDPA), 1652–53

APA, 1644–52 Article III issues, 1725–44

(see also specific issues in this heading)

attenuation, 1743 BIA not bound “case or controver-

sy” limitation, 1561 Bivens action, 1831–34 Chevron deference, 1772–87 choice of law, 1793–95 civil rights actions, 1825–27 claims processing rules, 1558–59

v. jurisdictional limitations, 1810–11 class action, 1802–5 committed to agency discretion,

1750–52 consolidation of issues on review,

1639–40, 1796 constitutional claims not barred,

1628–29, 1706–7 consular review, 913, 919, 981,

1725–28, 1770–71 convictions, persons barred from re-

view, 1635, 1652–55, 1674–78 declaratory judgment action, 1673–74 deference to agency interpretation,

1772–87 denaturalization, 1991–92, 1998 departure from U.S., 1747–48,

1791–92 deportation proceeding, 1787–1802 detention and parole, 210–14, 436–

39, 446–60, 640–42, 1636, 1674, 1717–18, 1791

discretionary decisions, review barred, 1635, 1636, 1678–94

dismissal of complaint under Rule 12(b)(6), 1818–19

effective dates of AEDPA and IIRIRA, 1820–21

exhaustion, see Exhaustion of ad-ministrative remedies

facially legitimate, bona fide, 211, 1758

factual findings reviewed, 881–93, 1478, 1573–76, 1769, 1770

Federal Tort Claims Act, 1827–31 federal-question jurisdiction, 1641–44 filing, timely, 1787–89 final order, defined, 1637–41 Foreign Sovereign Immunities Act,

see Sovereign immunity frivolous appeals, 548 fugitive, 1744–45 habeas corpus, see Habeas corpus harmless error, 525–28, 587–88,

1771–72 IIRIRA changes, generally, 10,

1625–31 INA §106 legislative history, 1625 INA §236(e), 210–14, 436–39,

1674, 1767 INA §242, 1634–35, 1637–41

INA §242(a)(2)(B)(i), 1687–94 INA §242(a)(2)(B)(ii), 1678–94 INA §242(a)(2)(C), 1635, 1674–78 INA §242(a)(2)(D), 1626–29 INA §242(b)(9), 1637, 1639–40 INA §242(g), 1694–98 injunctive relief, 1672–73, 1734–35 judicial notice, 1801 laches, 1743 law of case, 1663–64, 1772 legislative history, 1637 loss of citizenship, 1997–2000 LPRs returning from abroad, 208 mandamus, 1666–72 mandate stayed, 1801–2 manifestly contrary to law standard,

891, 1758 mootness, 1739–43 nationality claim, 1796 naturalization, 1994–2000 non–final orders, 1725 noninquiry rule, 1744 notice of appeal, 1787–89 pendent, 1641 political question doctrine, 1743–44 post hoc rationalization, impermis-

sible, 1753–54 preclusion of review, see Judicial

review presumption of review, see Judicial

review prior adjudication, 1746–47 Prison Litigation Reform Act,

1665–66 Privacy Act, 514 private right of action under INA,

1852 REAL ID Act, overview, see REAL

ID Act record, 1755–58, 1796 reinstatement of removal order,

623–27, 1705–6 remands, 1765–66, 1796–1801 removal proceedings, 1787–1802 retroactivity, 1812–18 ripeness, 1737–39 scope of review, see Judicial review sovereign immunity, see Sovereign

immunity standard of review, see Judicial re-

view standing, see Standing statutory construction, see Statutory

construction rules statutory preclusion to jurisdiction,

1625–36, 1674–1707 stays, 1672–73, 1789–91 sua sponte reopening, 1750–52 subject-matter jurisdiction, 1725–28 substantial-evidence test, 881–93,

1768–71, 1795 summary judgment, 1818 summary removal, 1634–35, 1802

federal jurisdiction, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2298

terrorism, 457–60, 623 Torture Victims Protection Act,

1835, 1839–40 trafficking victims, civil action,

1843–44 transfer of case to and from circuit

court, 1664 Tucker Act, 1844–45 U.S. as party, 1744 U.S. nationality claim, 1796 venue, 1748–49, 1793–95 void for vagueness, see Void for

vagueness federal jurisdiction, cont’d waivers, 1635, 1636, 1678–91 wrongful deportations, 1748, 1791–

92 Federal Tort Claims Act, see Liti-

gation fees attorneys’ fees, see Attorneys’ fees consular fees for visas, 912 fee schedule, 1238–39 procedure for filing with BIA, 612 procedure for filing with IJ, 612 refund, 1239 waiver, 190, 1238–39

female genital mutilation (FGM), see Asylees and refugees

fiancé(e)s, see K-1 & K-2 visas Fifth Amendment (see also specific rights) in absentia hearing, 609 burden of proof not satisfied, 559,

578–80 continuance, basis for, 496 crimes as basis for assertion, 559–60 removal proceeding, 559–60 suppression, 408

motion, 558–59 taking, 1834–35 testify, refusal to, 559–60

fifth preference (employment), see Employment-creation visas (EB-5)

filing, see Electronic filing; Forms; specific contexts

Filipino war veterans naturalization, 1981

final order BIA authority to issue, see BIA re-

view defined, 1637–41 remand, as a, 1801

fines, 386–91 airlines, 386–88 appeal, 388, 391 defenses, 387–88, 390–91 destroying documents on landing, 388 document fraud, 388–91 employer sanctions, see Employer

sanctions

entry, attempted, 367 escape from removal, 366 EWI, 367 failure to depart after final order, 391 judicial review, see Judicial review mitigation, 386–87 procedures, 386–88, 389–90 remission, 386–87 summary decision, 390 unfair immigration employment

practices, 1945 firearms offenses as aggravated felony, 259–60 criminal penalties, 367–68 deportation, 243–45, 259–60 moral turpitude, 112

firm resettlement, see Asylees and refugees

first offender status, see Convic-tions

first preference, see EB-1; Em-ployment-based immigration; Family-sponsored immigration

Fleuti doctrine, 68–70 flight from immigration check-

point at high speed criminal statute, 367 removal ground, 240

FOIA, see Freedom of Information Act

following to join defined, 1218 derivative status, 1229

force, excessive use of, 416–17 forced abortion/sterilization as basis for inadmissibility, 175 as persecution, 10, 652, 865–72

forced feedings of detainee, 216 Foreign Agent Registration Act, 235 foreign asset control violations,

153, 1365 foreign convictions, see Convictions foreign degrees advanced degree defined, 1310–12 foreign degree equivalency, 1320–

21, 1419 foreign law, 575–76 foreign medical graduates (FMGs)

(now, more commonly, “interna-tional medical graduates”), see Physicians (IMGs)

foreign officials, see A visas; Dip-lomats; G visas

foreign policy detention, 638 grounds of inadmissibility, 172–73 grounds of removal, 234

Foreign Sovereign Immunities Act, see Sovereign immunity

foreign state chargeability, see Immigrant visas

foreign-residency requirement, 974–83

annotation error, 982 cancellation of removal, 1490, 1509 change of status, ineligible, 927 E.U. countries, 982 family members, 986 impossibility of performance, 982 judicial challenge, 981 loss of citizenship, 982 repayment of funds, 982 residency in third country, 981 skills list, 982 spouses and children, 986 suspension, 1526 third country residency, 981 waiver, 181, 908, 927, 974–83

forfeiture, 357–60 attorneys’ fees, see Attorneys’ fees collateral attack, 359 constitutional infirmity of proce-

dures, 358 criminal, 370 defenses, 358–59 foreign judgment enforcement, 360 fugitive, 359 grounds for, 357–58 innocent owner, 358 jurisdiction, 357–58, 359 probable cause for, 357–58 remission and mitigation, 357–58 trial by jury, 359

forms (see also specific topics covered by

forms) date document is considered “filed”

with USCIS, 921 e-filing, see Electronic filing force of law and instructions, 404,

930, 1237–38 I-9 (Employment Eligibility Verifi-

cation), 1875–83, 1892 (see also Employer sanctions) correcting deficient I-9, 1882 disclosure prohibited, 1878 document abuse, 1937–38 documents required for I-9, 1880–81 evidence in removal proceedings,

1891–92 false claim to U.S. citizenship, 148,

235–36, 1887 falsifying employment info, 1948

I-90 (Appl. to Replace Permanent Resident Card), 1283

I-129, see Change of status; Nonim-migrants; Premium processing; specific nonimmigrant visas

SUBJECT MATTER INDEX guilty pleas

2299

I-130 (Petition for Alien Relative) (see also Family-sponsored immi-

gration) petition process, 1233–45 reinstatement, 1208–9, 1242–43

I-140, see Employment-based im-migration

I-213 (Record of Deportable/Inadmis-sible Alien), 416, 515, 550–53, 564–65 (see also Removal pro-ceedings—deportation; Removal proceedings—inadmissibility)

I-824 (duplicate approval notice), 910, 913, 1219, 1226, 1262, 1284

I-864, see Affidavits of support forum shopping adverse credibility finding, 825

“found in” U.S. after removal, 330–35, 336–50, 378–79

Fourth Amendment, see Arrests; Search and seizure

fourth preference, see Family-sponsored immigration; Special immigrants; specific types of immigrants

fraud and misrepresentation 30-60 day rule, 140 as aggravated felony, 274–78 amnesty related, 366 asylum claims, 765–69, 824, 831–32 civil proceeding, 139, 388–91 as crime involving moral turpitude,

111 criminal proceedings, 360–64 document fraud, see Documents FDNS, see Fraud Detection and Na-

tional Security Directorate immigration-related fraud, 360–64 inadmissibility ground, 140–46 in lieu of marriage fraud, 146 naturalization by fraud, 2000–2003 relation back doctrine, 145–46 SAW fraud, see Legalization social media used, 1211 Social Security fraud, 368 waiver, 187–89, 1212 willful blindness

CAT claims, see Convention Against Torture

deliberate avoidance as inadmissi-bility ground, 144

employer sanctions, see Employer sanctions

Fraud Detection and National Se-curity Directorate (FDNS), 522–23, 932–33, 1037–38

adjustment of status, 1211 H-1B visas, 1037–38 religious visas, 932–33, 1326

free trade agreements, see E-3 visas; H-1B1 visas; NAFTA

Freedom of Information Act (FOIA), 500–513

adequacy of search, 503–4 attorneys’ fees, see Attorneys’ fees burden of proof, 505–7 fingerprint FOIA, 502 fugitives, 513 genealogy, 502 in camera review, 512–13 National Archives (NARA), 500 Open Government Act, 502, 1869 procedures, 500–502 referral to other agencies, 504–5 Vaughn index, 506 visa records disclosure, 919–20

Freely Associated States (Microne-sia, Marshall Islands, Palau)

employment authorization, 1920–21 visa not required, 939–40

frisking, 415 frivolous filings appeals, 544, 1564 asylum applications, 765–69

fugitives deportation status, 365–66, 369,

642–43 escape from removal proceedings,

366 fugitive disentitlement doctrine

administrative review, 1619 FOIA, 513 petitions for review, 1744–45

right to pursue administrative ap-peal, 1619

right to pursue FOIA requests, 513 right to pursue forfeiture claim, 359 right to pursue relief, 1467–68 waiver of federal appeals, 1744–45

G

G visas (int’l organizations) (see also Diplomats) adjustment, 1130, 1256 cancellation of visa under INA

§222(g), 917, 1130 children born in U.S., 1130 criteria, 1127–29 employment, 1130 family, employment of, 1129

battered spouses, 1921 inadmissible, 1127–28 LPR status for children, 1166 NATO, 1130 overstay, 917, 1130 security and advisory opinions,

1127–28 special immigration, 1327 three/ten-year bar, 123

gender-based discrimination, see Sex discrimination

gender-based persecution, see Asylees and refugees

General Counsel, legacy INS memoranda not binding on DHS,

1583–84 Georgia legislation affecting immigration, 52

Global Entry Program, see Securi-ty, subhead: Inspection data-bases and programs

good moral character, 1475–78 aggravated felony, 1477 battered spouse, child or parent,

1170 discretionary ineligibility, 1478 military service for naturalization,

1973–74 naturalization, 1968–75 registry, 1166 statutory ineligibility, 1475–78 voluntary departure, 1480

government counsel, see Attorneys government suits, see Litigation grandfathering §245(i) purposes, 1268–72 employer sanctions, 1875–76, 1906

green cards (I-551) conditional residency, 1283 confiscation of, 1284 criminal charge for failure to carry, 367 replacement of, 1283–84 second residency, 1285 status, not determinative of, 1165 temporary proof while I-90 pending,

1284 verifying residency, 1284–85

grounds of removal, see Deportation grounds; Inadmissibility grounds

Guantanamo detention, 216

guardians ad litem, 404, 591 for deportation hearing of minor,

590–92 for inadmissible person, 77

Guatemalans (see also NACARA) American Baptist Church agree-

ment, 757–58 refugee/parole program for minors, 656

guidelines, see Poverty guidelines; Sentences and sentencing

guilty pleas, 315–20 agreement with prosecutor, 369 fast track plea, 319–20 vacate plea, 315, 327–28 withdrawal of plea, 320, 328

Guineans KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2300

Guineans TPS, 760

Gulf War veterans, naturalization, 1981

H

H visas, generally, 989–90 (see also specific H visas) employment authorization for bat-

tered spouses, 1921 numerical limitations, 908, 991–94,

1045, 1078 petition required, 913–14

H-1A visas, see Nurses

H-1B visas (specialty occupations), 990–1038

(see also Nurses; Physicians) adjustment of status

adjustment not bar to continue sta-tus, 1280

extension while adjustment pend-ing, 1036, 1280

travel without abandoning adjust-ment, 1037, 1277

admission, period of, 1033–36 advance parole unnecessary, 1037,

1277 agents, 996, 1029 appeals, 1033 attestation, see Labor condition ap-

plications bachelor’s degree or equivalent,

998, 1003–4 benching, 1006–7 caps, numerical, 908, 991–94

cap-exempt, 991–93 change of status and cap-gap, 957,

993–94 doctors exempt, 991 INA §222(g), 994 master’s degree, 993

change in employment, 909, 1030–33 classes, attending while in H-1B

status, 1036 credential evaluations, 1004 criteria, 990–98 damages claims, 1020–24, 1029 Defense Department visa, 1038 definition, 998–1005 denial, 1033 dependent employers, 990, 1005,

1027–28 DHS fees, 1029 documentation needed, 1030 dual intent, 908, 990, 1036 E-3 visa compared, 1117 educational equivalent, 998, 1003–4 employee payment, 991

employer change in, 909, 1030–33 employer-employee relationship,

995, 996 multiple, 1032 required U.S., 994 successor, 1030

employment, short term, 1032 evaluation, 1004 experience sufficient, 1003–4 Export Administration Regulation

(EAR) violations, 152–53, 998 extension, period of, 1036 extension during adjustment, 1034,

1036 family members, 1036–37 fashion models, 1038 fast track, 1044–45 fees, 1029 fines for failure to comply, 1020–24 foreign medical graduates, see Phy-

sicians foreign residency not required, 990 fraud investigations, see Fraud De-

tection and National Security Directorate (FDNS)

grace period of ten days, 1034 H-1B Visa Reform Act, 18–19 iCERT, 1005, 1010, 1015 immigrant intent, 908, 1036 INA §222(g), 917, 994 independent contractors, 995 international medical graduates

(IMGs), see Physicians job shop (referred employees), 996 judicial review, see Judicial review labor certification, effect of filing,

990 labor condition application (LCA),

see Labor condition applications layoff, 1006–7, 1028 leave, 1032

Family and Medical Leave Act, 1032, 1036

legislative history, 990 license requirement for position,

1002–3, 1030, 1033, 1039–40 liquidated damages clause, 991, 1010 maintain status, 998 master’s degree or equivalent, 1004,

1027 multiple employer, 1032 numerical limitations, see subhead:

Caps (in this heading) nurses, see Nurses overstay/INA §222(g), 917, 994 owner as petitioner, 995 per diem payment, 1006 petition

amended petition, 1030–33 new petition, 1032 revocation, 1033 validity date from work date, 1029

physicians, see Physicians portability, 997, 1032 posting notice, 1016–17

electronically, 1017 prevailing wage, 1010–14 procedures, 913–14, 929–33, 1029–33 professional defined, 999–1002 professional employer organization,

994 public access file, 1015–16 reduction in force as termination, 1033 revocation, 1033 safe harbor, 1012 salary, payment within 30 days of

entry, 991 salary by foreign employer, 994 self-petitioning, 995 Singapore (H-1B1), 1044–45 six-year limitation, 1033–34

extension beyond six years, 1034–36 specialty occupations, 998–1005 spouse and children, 1036–37

employment authorization for bat-tered spouses, 1921

strikes, 998, 1014 successor employer, 1030 termination of employment and sta-

tus, 998, 1032 time limitation, 1033–36 transportation costs, 991 travel during pendency of adjust-

ment, 1037, 1277 U.S. employer only, 994 whistle blowers, 1024 willful violators, 1005, 1016, 1027–28

H-1B1 visas (Chile/Singapore FTA), 1044–45

E-3 visa compared, 1117 Export Administration Regulation

(EAR) violations, 152–53, 1045 numerical cap, 993, 1045

H-1C visas, see Nurses H-2A visas (agricultural tempo-

rary workers), 1045–56 countries designated for program,

1054 enforcement of contract, 1056 portability, 1054 procedures (DHS), 1053–56 procedures (DOL), 1046–53 requirements, 1045–46 seasonal defined, 1045–46 successors-in-interest, 1053, 1056 temporary defined, 1045–46

H-2B visas (nonagricultural tem-porary workers), 1056–79

associations, unacceptability of fil-ings from, 1076

athletes, 1075 beneficiaries

naming, 1077 substitution of, 1077

SUBJECT MATTER INDEX history of immigration laws

2301

countries designated, 1076 debarment, 1073, 1077 entertainers and athletes, 1075 Fair Labor Standards Act, 1927–29 job contractors, 1058–59, 1071 procedures (DHS), 1075–78 procedures (DOL), 1060–75 requirements, 1056–60 revocation, 1078–79 temporary defined, 1057–58 unfair immigration employment

practices relationship to, 1936

H-3 visas (trainees), 987–89 admission, 989 criteria, 987 distinguish B-1 and J-1, 988 extension, 989 externs, 988 labor certification as grounds to de-

ny, 989 nurses, see Nurses programs excluded, 987 special education exchange pro-

gram, 989 training program, 987–88

habeas corpus AEDPA, 1652–53 against Attorney General, 1660–61 bail, inherent authority to grant,

1656–57 class treatment, 1802–5 collateral attack, 1665 constitutional review, 1652, 1706–7 criminal proceedings, 327–28 custodian, 1660–61 in custody requirement, 1657–59 delay in hearings not permissible,

1665 detainers, 442 discovery, 1664 district court filing, 1664 equitable tolling, 1660 exhaustion requirement, 1662–63 Great Writ, 1652, 1707 IIRIRA, 1652–53 law of the case, 1663–64 outside U.S., 1662 personal jurisdiction, 1660–62 personal service, 1660–62 procedural requirements, 1666 REAL ID Act, 21, 1652–55 relief, 1657 removal proceedings, 1652–57 res judicata, 1663–64 revocation of visas, 1657 sanctions against counsel, 1666 scope of review, 1655–56 successive applications, 1665–66 summary removal, 200–201, 1666,

1802 terrorist suspects, 457–60

transfer affecting jurisdiction, 1659–60

vacation or set-aside of conviction, 327–28

venue, 1660–62, 1748–49 Hague Convention on Protection

of Children, see Adopted chil-dren

Hague Convention on the Civil Aspects of Child Abduction, 150–51

Haitians Cuban-Haitian Adjustment Act, 896 deferred departure program, 750–51 Family Reunification Parole Pro-

gram, 759 Help HAITI Act of 2010, 29, 1233 HRIFA, 11, 751, 1232–33

aged-out children, 1222 interdiction, 177, 657–58 student (F-1) employment, 959 suspected human rights violations as

ground of inadmissibility, 11, 175 temporary protected status, 758–59

harboring aliens, see Transport-ing/harboring

hardship cancellation of removal, 1508–9,

1514–17 exchange visitor, 181, 976–78 suspension, 1514–17, 1526

harmless error doctrine deportation, 402, 525–28, 587–88 federal court, 1771–72 labor certification, 1381

health care (foreign) workers, 86–89 health insurance eligibility, see

Affordable Care Act health-related inadmissibility

grounds, 71–77, 194 health-related reason for release,

199–200, 209–10, 455–56 hearings, see specific tribunals (e.g.,

BIA review), specific type of proceeding (e.g., Employer sanc-tions, Removal proceedings), specific issues (e.g., In absentia hearings), etc.

hearsay, see Evidence high-speed flight, see Flight from

immigration checkpoint at high speed

history of immigration laws, 3–33 1965, 1976, 1978, and 1981 Amdts., 5 AC21 (American Competitiveness

in 21st Century Act), 12–13 ACA (Obamacare) (Patient Protection

and Affordable Care Act), 29

Act to Encourage Immigration of 1864, 3

ACWIA, 11 Adam Walsh Child Protection &

Safety Act of 2006, 23–24 Adoptive Family Relief Act, 31 AEDPA, 8 Afghan Special Immigrants, 23, 28, 30 AIDS/HIV (Lantos-Hyde ... Reau-

thorization Act), 26 Alien and Sedition Acts of 1798, 3 Alien Enemies Act of 1918, 4 American Recovery and Reinvest-

ment Act of 2009, 28 Anti-Drug Abuse Acts, 6 anti-terrorism provisions, 8, 9, 11,

14–15, 18, 19–21, 24–25 Armed Forces Immigration Adjust.

Act of 1991, 7 Asiatic Barred Zone, 4 Child Citizenship Act of 2000, 13 Child Soldiers Accountability Act, 26 Child Status Protection Act, 16 Chinese Exclusion Act of 1882, 3 Chinese Student Protection Act of

1992, 7 CNRA (Consolidated Natural Re-

sources Act of 2008), 26 COMPETE Act of 2006, 24 Conrad 30 extension, 27 contract labor laws, 3 Convention Against Torture, 11 death of petitioner/principal, 15, 16,

17–18, 25, 28 Detainee Treatment Act of 2005, 23 DHS Approp. Act for FY10, 28 DOJ Approp. Auth. Act, 16 early immigration legislation, 3–4 Employ American Workers Act, 28 Enhanced Border Security and Visa

Entry Reform Act, 15–16 exclusion laws, 3–4 H-1B fee increase, 29 H-1B Reform Act of 2004, 18–19 Hague Convention on Adoption, 12 Help HAITI Act of 2010, 29 Heroes Earnings Assistance and

Relief Tax Act of 2008, 26 Homeland Security Act and

Amendments, 16–17 HRIFA (Haitian Refugee Immigra-

tion Fairness Act), 11 Human Rights Enforcement Act, 29 IIRIRA, 8–10 IMFA (Immigration Marriage Fraud

Amendments Act), 5–6 IMMACT90 (Immigration Act of

1990), 6–7 Immigration Act of 1907, 4 Immigration Acts of 1882 & 1891, 3 INA §245(i) legislation, 11, 14 INA §245(k) legislation, 11 INS abolished, 16

history of immigration laws, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2302

INTCA (Immigration & Nationality Technical Corr. Act of 1994), 8

Intercountry Adoption Act, 12 International Marriage Broker Reg-

ulation Act of 2005, 23 International Megan’s Law to Pre-

vent Child Exploitation, 33 Iraqi special immigrants, 23, 25, 30 IRCA (Immigration Reform and

Control Act), 5 Irish Peace Process visas, 11–12 L-1 fee increase, 29 L-1 Reform Act of 2004, 18–19 LIFE Act and Amendment, 14 McCarran Walter (1952) Act, 4 Military Comm’ns Act of 2006, 24 Military Personnel, Naturalization

& Other Immigration Benefits, 17–18, 27

Military Personnel Citizenship Pro-cess Act, 27

MTINA (Misc. & Tech. Immigr. & Natz Amdmts. of 1991), 7

NACARA, 10 national defense authorization acts,

17–18, 23, 25–26 national origin quota system, 4 Naturalization Act of 1790, 3 Northern Mariana Islands, 26 Nursing Relief Acts, 6, 12 Obamacare, see subhead: ACA (in

this heading) omnibus/consolidated appropria-

tions acts, 11, 18–19, 24–25, 28, 30, 31–32

Orphan Redefinition Under Non-Hague Convention Countries, 31

Passport Act of 1918, 4 Patient Act To Extend VD, 13–14 REAL ID Act of 2005, 20–22 Refugee Act of 1980, 5 Refugee Crisis in Iraq Act of 2007, 25 Religious Freedom Act of 1998, 11 Save Our Small and Seasonal Busi-

nesses Act of 2005, 21–22 Secure Fence Act of 2006, 24 Soviet Scientists Immig. Act, 7, 16 Steerage Act of 1819, 3 Syrian Adjustment Act, 13 TARP H-1Bs, 28 terrorism exceptions (Consolidated

Approp. Act of 2008), 24–25 Terrorism Prevention Act of 2004,

19–20 terrorist states (broadening FSIA

waiver), 25 history of immigration laws, cont’d Torture Victims Protection Act

(TVPA), 7 Torture Victims Relief Reauthoriza-

tion Act of 2003, 18 Trafficking Victims Protection Acts &

VAWA, 13, 18, 22–23, 27–28, 30 Travel Promotion Act of 2009, 29

U.N. Convention Against Torture, 11 U.N. representatives, visa limita-

tion, 31 USA PATRIOT Act, 14–15 USIA abolished, 11 VAWA, see subhead: Trafficking

Victims Protection Acts (in this heading)

Vietnam, Cambodia, and Laos Ad-justment Act, 14

Violent Crime Control and Law En-forcement Act of 1994, 7

Visa Entry Reform Act, 15–16 Visa Waiver Improvement & Ter-

rorist Travel Prevention Act, 32 welfare law (Personal Responsibil-

ity and Work Opportunity Rec-onciliation Act), 8

widow’s penalty legislation (2010 DHS Appropriations Act), 28

William Wilberforce (TVPRA), 27–28 HIV, see AIDS/HIV Homeland Security Act, 16–17 homeless visa cases, 1246 homosexuality / LGBT adoption, 1184 asylum claims, see Asylees and ref-

ugees, subhead: Sexual orienta-tion, evidence of

marriage, see Same-sex marriages mental health, 77

Hondurans refugee/parole program for minors,

656 temporary protected status, 758

housekeepers, see Domestics HPSA (health professional short-

age area), 12, 979, 990, 1039, 1316, 1317

HRIFA, see Haitians humanitarian asylum, 708–9 parole, see Parole reinstatement of I-130, 1208–9 “special situations” relief, 751

Hungarians cancellation of removal, 1519

hunger strike by detainee, 216

I

I-___ (forms), see Forms; specific topics covered by forms

I visas (information media repre-sentative), 1122–23

I³ (Internet Immigration Infor-mation), see Executive Office for Immigration Review

IBIS lookout system, see Security checks, subhead: Inspection da-tabases and programs

ICE, see Immigration and Customs Enforcement

iCERT, see Labor certification; Labor condition applications

IDENT system, see Security checks, subhead: Inspection databases and programs

identity theft (aggravated), 363–64, 2003

illegitimate children, see Legitima-cy and paternity

immediate relatives, see Family-sponsored immigration

Immigrant Investor Pilot Pro-gram, see Employment-creation visas (EB-5)

immigrant visas (see also Employment-based im-

migration; Family-sponsored immigration; Preference peti-tions; specific visas and profes-sions)

adjudication prior to submission, 1362 adjustment, differences with, 1245 affidavit of support, see Affidavits

of support aging-out, see Aged-out children battered spouses/children, see

VAWA petitioners birth certificates, 1238 burden of proof, 1229, 1237, 1242,

1246, 1248 changes to petition, 1361 confidential evidence, 1240 consular processing, see Consular

processing continuance based on petition, 491–95 copies of documents permissible,

1237 criminal background of petitioner

as a basis for denial, 1233–34 disclosed to beneficiary, 1239

death of petitioner, see Death of petitioner

denials, 190, 1241–42, 1248–49, 1366 deportation not stayed, 1240 discretionary acceptance, 1245–46 dual intent, 908 eligible at application time, 1239 embargoed countries, 1365 employment not granted when peti-

tion approved, 1372 entry to U.S. within six months, 1249 expedited processing, 1239, 1366 fingerprint checks, 1247 foreign state chargeability, 1217–19 homeless visa cases, 1246

SUBJECT MATTER INDEX inadmissibility grounds

2303

investigation, withholding approval until, 1239–40

judicial review, see Judicial review lottery, see Diversity immigrants medical exam, 1247 name check procedure, 1247 National Visa Center, 1243, 1245–

46, 1248 numerical limitations, 1216–17 oversubscription, 1217, 1229 petition with DHS, 1233–45, 1361

adverse evidence, right to respond, 1241

amending petitions, 1239, 1361 humanitarian reinstatement after

death, 1208–9, 1235–36, 1242–43 return of, 1248 revocation of, 1242–43, 1366–67

police certificate, 1246–47 presumption against admissibility,

1229 priority dates, see Priority dates procedures, 1233–45 records unavailable, 1237 replacement visa, 1249 return of visa petition, 1248 revocation, 1242–43, 1366–67

judicial review, 1243–45 second residency, 1285 security checks, 914–15, 1247 tax returns, 1247 third country processing, 1249 three/ten-year bar, 1171, 1279 venue, 1236–37 waivers of inadmissibility, 177–90 widow(er)s, 1167–68, 1208–9,

1242–43 Immigration Act of 1990

(IMMACT90), 6–7 Immigration Advisory Program, 192 immigration agents criminal conduct, reporting, 370 power to arrest, 423–26 right to search and seizure, 405–7

Immigration and Customs En-forcement (ICE)

detention standards, 217–20 employee conduct, 220 ICE counsel agreement, see Prose-

cutorial discretion Priority Enforcement Program

(PEP), 445 Secure Communities initiative, 445

Immigration Court Practice Manual attorney, limited appearance, 537–38 change of venue, 486–87 document submission, time, 518, 565 evidence, presentation/form, 518,

553–54 filing documents, 485–86

deadlines, Apdx C FOIA, 501–2

hearing, procedural issues, 518 prehearing conference, 518 subpoena, 513

immigration judges (IJs) Benchbook, 471, 540, 589, 591 contempt power, 544 credibility determinations, see Cred-

ibility determinations misconduct, 612–17 off-the-record discussion, 394, 588–

89, 1755–58 recusal, 612–17 roles as prosecutor and adjudicator

are separate, 616 sanctions, attorney, 544–47 suits against, 617 transfer of case to new IJ, 615–16

Immigration Marriage Fraud Amdts. Act, see Marriage fraud

Immigration Reform and Control Act (IRCA), 5 (see also Em-ployer sanctions; Legalization; Unfair immigration-related em-ployment practices)

immunity of gov’t officials, see Litigation sovereign immunity, see Sovereign

immunity imprisonment defined, 10, 301–3

imputed political motive, 678–80, 680–81

social group claim, 683 in absentia hearings appeals, 598 burden of proof, 605–6 defenses, 600–609 due diligence, 596–97 equitable tolling, see Equitable tolling exceptional circumstances as de-

fense, 606–9 finality of order, 598 inadmissibility for failure to attend, 137 judicial review, see Judicial review minors, 591–92, 609 motions to reopen, 595–98 notice, 600–606 removal (deportation), 594–609 removal (inadmissible), 226–27,

594–609 rescission of order, 595–98 self-incrimination, 609 stay of removal, 598 withdrawal of relief, 1467–68

in forma pauperis, 224, 536 INA §212(c), 1493–1502 adjustment permitted, 1498 bars to eligibility, 1501–2 comparable ground of removal, 1502 conviction after trial, 1498

convictions prior to 1990, 1500–1501

eligibility, 1493–1502 exclusion proceedings, 1493–1502 special motion to reopen, 1498–99 St. Cyr eligibility, 1497–98 statutory counterpart rule, 1502

INA §245(i), see Adjustment of status

inadmissibility, see Inadmissibility grounds; Removal proceed-ings—inadmissibility; Waivers

inadmissibility grounds, 71–191 (see also Admission; Removal pro-

ceedings—inadmissibility; Waivers) §274C final order, 139, 235, 388–91 accompanying inadmissible person, 77 body parts, coercive transplantation

of, 176 business info, trafficking in, 175 child abduction, 150–51 child soldiers, recruit of, 174 citizenship, ineligible for, 147 Colombian insurgents, aiding and

abetting, 176 communicable disease, 71–73 Communist Party affiliation, 173 confiscator of U.S. property, 175 corruption, 176–77 crime involving moral turpitude,

89–112 criminal grounds, 89–119 Cuba, confiscation or trafficking in

property, 175 deported previously, 119–21 diplomats, 119 disclose confidential business in-

formation, 175 documentary violation, 119–40 draft evasion, 147 drug abuser, drug addict, 76–77 drug offenses, 112–17 drug trafficking, 115–17 drunk driving, 101, 103–4 economic, 77–89 effective date of new grounds, 191 elimination of certain grounds, 77,

89, 119, 151–52 espionage, 152–53 EWI, 137 excluded previously, 119 executive order, 176–77 export of technology, prohibition

on, 152–53 expropriator of U.S. property, 175 extrajudicial killing, 174 failure to attend hearing, 137 false claim to U.S. citizenship, 147–49 final order under INA §274C, 139,

235, 388–91

inadmissibility grounds, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2304

forced abortion or sterilization, di-rect involvement in, 175

foreign assets control violation, 153 foreign conviction, 99 foreign health care workers, 86–89 foreign policy, 172–73, 201 former grounds, 77, 89, 119, 151–52 fraud, see Fraud & misrepresentation genocide, 174 inadmissibility grounds, cont’d guardian of inadmissible person, 77 Haitians, suspected human rights

violators, 175 health care workers, foreign, 86–89 health related grounds, 71–77, 194 HIV, 72 human trafficking, 118 IIRIRA changes, 8–10 illiteracy, 151–52 Immigr. Act of 1990, 77, 89, 151–52 ineligible for citizenship, 147 inspection, failure to undergo, 121–34 intending immigrant, 146–47 labor certification, 86 medical graduate, foreign, 86 mental disorder, 74–76 military-type training, recipient of, 155 misrepresentation, see Fraud and

misrepresentation money laundering, 117 moral grounds, 119 moral turpitude crimes, 89–112 multiple crimes, 117–18 Nazis, 174 no visa, 146–47 nonimmigrant without passport or

visa, 146–47 organ transplantation through coer-

cion, 176 overstays

(see also subhead: Three/ten-year bar (in this heading))

new visa prior to reentry, 916–17 physicians, 917, 1043 visa void, 916–17

overthrow of U.S., 153 passport invalid, 146–47 petition approval not barred, 1240 physical disorder, 74–76 physician, 86 polygamy, practicing, 119 present without admission or parole,

137 by presidential proclamation, 176–77 prostitution, 118 public charge, 77–86 reason to believe, 115–17, 153, 178,

313 reentry after EWI or removal, 119–21 religious persecutor, 174 removal order, 119–21 removal proceedings, failure to at-

tend, 137

renounced citizenship for tax pur-poses, 89

sabotage, 152–53 security grounds, 152–77 sex traffickers, 118 smuggling, 138–39 stowaway, 138 student visa abuser, 139–40 tax avoider, 89 terrorism, see Terrorists and terrorism three- and ten-year bars, 121–22 torture, 174 totalitarian party membership, 173 trafficking drugs, 115–17 trafficking in persons, 118 unlawful activity, 153 unlawful presence, 121–34 vaccinations, 73–74 voting unlawfully, 149–50 waivers of inadmissibility, see

Waivers inadmissibility hearing, see Admis-

sion and inspection; Removal proceedings—inadmissibility

incompetents hearing, 590–94

inconsistent decisions abuse of discretion, 1759–68

indefinite detention challenge, 208, 449–59

independent contractors employer sanctions, 1874

indeterminate sentence, 301–2 Indiana legislation affecting immigration, 52

ineffective assistance, see Counsel, right to

InfoPass, 558, 1240 informants asylum, 872–73 as witnesses, see S visas

information media, see I visas injunctive relief, 1672–73, 1734–35 INSPASS, see Security, subhead:

Inspection databases and pro-grams

inspection, see Admission and inspec-tion; Removal proceedings—inadmissibility; specific issues

instructions on forms, see Forms intending immigrant (INA

§214(b)) H and L categories exempt, 908 inadmissible for, 146–47 presumption of, 907

Intensive Supervision Appearance Program, see ISAP

Inter-American Commission on Human Rights, 1852

interdiction, 657–58 interlocutory appeals BIA, see BIA review

intermediate scrutiny, 38 International Child Abduction

Remedies Act (ICARA), 150–51, 1869

International Covenant on Civil and Political Rights

Alien Tort Claim, 1836–37 de facto deportation of child, 404–5 dismissal of NTA, 482–83 INA §212(h) relief, 482–83

international law defense to removal, 404, 482–83 Inter-American Commission on

Human Rights, 1852 International Covenant On Civil and

Political Rights, 404, 482–83, 1812, 1836–37

refugee protection, 649–51 statutory construction, avoid violat-

ing international law, 1812 U.N. Conventions

CAT, see Convention Against Tor-ture

Relating to the Status of Refugees, 649–50

Vienna Convention on Consular Relations, 358–59, 408, 617–19, 642–43, 1125, 1852, 1855

waivers based upon, 482–83 International Marriage Broker

Regulation Act of 2005, 23 international medical graduates

(IMGs), see Physicians international organizations repre-

sentatives, see C visas; G visas International Religious Freedom

Act, 11, 174, 575, 831 Internet resources, Apdx H internships, see F visas; J visas interpretations, see Translations

and translators interrogation procedures, see Re-

moval proceedings—deportation interrogatories, 513 interviews asylum applicants, 770–71

reinterview before removal, 775 telephonic interviews, 774–75

at consulate, see Consular processing evidentiary use of inconsistencies in

airport interview, 574–75, 829–31 labor certification, 1445–51 phone or video interviews, see Tel-

ephonic and video technology

SUBJECT MATTER INDEX judicial review

2305

rescheduling interviews adjustment of status, 1262 asylum, 770 naturalization, 1983

intracompany transferees, see L visas

investors (see also E-2 visas; Employment-

creation visas) B-1 to explore investment, 948 labor certification issues, 1439 physicians as investors, 1044 removal proceedings, 232, 1355

Iranians immigrant visa processing, 1246

Iraqis employed by U.S. in Iraq, 25, 30, 655 refugees of special humanitarian

concern, 655 safe third country, Canadian-U.S.

agreement, 719–20 special immigrants

providing faithful and valuable ser-vice to U.S., 25, 30, 1334–35

translators, 23, 1333–34 special registration (NSEERS),

222–23 translators for U.S. military, special

immigrant status, 23, 1333–34 TWOV, 1142

Irish Irish Peace Process and Cultural and

Training Program Act, 11–12 Q-2 visas, 1119 visa waiver, 940

ISAP (Intensive Supervision Ap-pearance Program), 432, 639–40

J

J visas (exchange visitors), 970–87 adjustment of status, 974–75, 1256 administrative review, 981, 1591–92 admission and extension, 984–85 appeals to Exchange Visitor Waiver

Review Board, 981, 1591–92 au pair program, 972 B-1 in lieu of J-1, 974 camp counselors, 974 Canadians entering without J-1, 970 Canadians subject to §212(e), 934,

981 cancellation of removal, 1490, 1509 cancellation of visa under INA

§222(g), 918, 981 categories of J-1s, 971–74 change of program, 983 children, 986 citizenship, loss of, 982 college and university internship

program, 972

criteria, 970 designation of program, 987 dual intent, 908 eligibility, 970–75 employment, 985

spouses, 985 entry into U.S., 983–84 estoppel, 986 exceptional hardship waiver, 976–78 Exchange Visitor Waiver Review

Board, 981, 1591–92 extension of stay, 984–85 foreign residency requirement, see

Foreign-residency requirement full course of study defined, 985 government agency waiver, 978,

979–81 government and international visi-

tors, 974 grace period, 985 H-1B cap, 991–94 hardship waiver, 976–78 hotline, 983 internship programs, 970 legislative history, 970 medical graduates, see Physicians medical insurance, 970 no objection waiver, 978 overstays, 918, 981 period of stay, 984–85 persecution waiver, 975–76 physicians, 970, 974–75, 978–81 procedure for J, 983–86 procedure for waiver, 974–83 professors, 974 reinstatement, 985–86 revocation of J program, 987 scholars, short-term, 974 SEVIS, 970, 980, 983, 984, 985–86 skills list, 982 special country programs, 974 sponsor’s obligations, 986–87 spouse and children, 986 State 30 waiver, 979 summer, work and travel program

(SWT), 973–74 suspension, 986, 987, 1526 teacher programs, 973 third country residency, 981 three- and ten-year bars, 123 trainee programs, 970 transfer to other J programs, 983 waiver, 974–83 waiver hotline, 983

Jencks Act, 514 job contractors, see H-2B visas joint sponsors (I-864), see Affida-

vits of support Joseph hearing, 448 judges, see Immigration judges

judicial notice, 1586, 1757, 1801 (see also Administrative notice)

judicial recommendation against deportation (JRAD), 6, 99, 316, 322–23, 1476

judicial review, 1625–1821 (see also Federal jurisdiction) adjustment of status, 1211–12,

1232, 1233, 1242, 1635, 1641, 1691–94, 1767

Administrative Procedure Act (APA), see Administrative Procedure Act

aggravated felonies, 1652–66, 1674–78

Anti-Terrorism and Effective Death Penalty Act (AEDPA), 1652–53

appeal procedures aggravated felons, 1635, 1663–64,

1674–78 deportation, 1787–1802 dilatory/frivolous appeal, 548 exclusion, 1625, 1787–1802 IIRIRA changes, 10, 1625–31,

1652–53 record, 588–89, 1755–58, 1796 remand, 1765–66, 1796–1801 removal, 1566–67, 1787–1802 reopen, motions to, 1640, 1716,

1762–65, 1788, 1795–96 time for filing, 1787–89 venue, 1748–49, 1793–95

Article III questions, see Federal jurisdiction

asylum cases, see Asylees and refugees attenuation, 1743 BIA or IJ decision, 1581–83 bonds, 436–39, 1674, 1678, 1717–

18, 1767, 1791 cancellation of removal, 1521–24,

1678–91 class treatment, 1802–5 committed to agency discretion, 913,

919, 981, 1136–37, 1160, 1554–55, 1604–5, 1750–52, 1923

consolidation of issues for review, 1639–40, 1796

consular decisions, 913, 919, 981, 1725–28

continuances, 496–97 Convention Against Torture, see

Convention Against Torture corroboration, 892–93, 1704–5, 1770 criminals, 1635, 1674–78 deference to agency action, 1772–87 denaturalization, 1998 departure during appeal, 1747–48,

1791–92 detention, 210–14, 436–39, 446–60,

640–42, 1674, 1717–18 district director decisions, 1641 diversity immigrants, 1231, 1670

judicial review, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2306

effective dates of AEDPA and IIRIRA, 1820–21

employer sanctions, 1771, 1918–19 employment authorization, 1767, 1923 employment-based petitions, 1243–

45, 1368, 1372, 1678–94 exhaustion, see Exhaustion of ad-

ministrative remedies expedited removal, 200–201, 1634–

35, 1666, 1802 factual determinations & nondiscre-

tionary grants, 879–93, 1769, 1795 family-based petitions, 1199–1200,

1678–94, 1766 federal-question jurisdiction, 1641–44 final order, defined, 1637–41,

1643–44, 1787–89 fines (civil penalties), 388, 391 Foreign Sovereign Immunities Act,

see Sovereign immunity fugitive disentitlement doctrine,

1744–45 futility, 1745 judicial review, cont’d H-1B petition, 1004–5 H-2A/H-2B, 1079 habeas corpus, see Habeas corpus harmless error, 525–28, 587–88,

1771–72 IIRIRA changes, 10, 1625–31,

1652–53, 1758, 1762, 1767, 1791, 1793, 1799

immigrant visas, 1725–28 in absentia hearings, see In absentia

hearings INA §242(a)(2)(D), 1626–29 INA §242(b)(9), 1639–40 investor program, 1359 judicial notice, 1801 jurisdiction, see Federal jurisdiction labor certification, 1462 laches, 1743 law of the case, 1663–64, 1772 location of IJ hearing for venue in

circuit courts, 590 loss of citizenship, 1994–2000 mandate stayed, 1801–2 mootness, 1739–43 motions to reopen, 1640, 1675,

1716, 1762–65, 1795–96 NACARA, see NACARA national interest waivers, see Na-

tional interest waivers nationality claims, 1796 naturalization, 1994–2000 no jurisdiction, 1634–36, 1674–78 nonimmigrants, 913, 981, 1105,

1725–28, 1770–71 pendent review, 1641 political question, 210–11, 1743–44 preclusion of review, 1625–36, 1674–

1707 (see also Federal jurisdiction) presumption of review, 1706–7 previous adjudication, 1746–47

procedure for appeal, 1787–1802 REAL ID Act, see REAL ID Act record, limited to, 1755–58 record on appeal, 1796 reinstatement of removal, 626–27,

1705–6 remands, 1765–66, 1796–1801 removal, expedited, 200–201,

1634–35, 1666, 1802 reopening, see subhead: Motions to

reopen (in this heading) rescission, 1281, 1641, 1771 restrictions on review, 1634–36 return if unlawfully deported, 1792 revocation, 1243–45 ripeness, 1737–39 scope of review, 1573–86, 1631–34,

1749–87 abuse of discretion, 1759–68 committed to agency discretion,

913, 919, 981, 1136–37, 1554–55, 1604–5, 1750–52

de novo, 1573 facially legitimate and bona fide,

211, 1758 habeas corpus review, see Habeas

corpus manifestly contrary to law, 879,

891, 1758, 1766 plenary review, 1749–50 substantial evidence, 881–93, 1768–

71, 1795 standard of review, 1758–72, 1795

abuse of discretion, 211, 880–81, 1571, 1618, 1759–68

de novo review, 1573, 1752 facially legitimate and bona fide,

211, 1758 factors considered in BIA decisions,

1579–81 levels of scrutiny, 38–39 manifestly contrary to law, 879,

891, 1758, 1766 plenary review, 1749–50 removal orders, 1758–72, 1795 substantial evidence, 881–93, 1768–

71, 1795 standing, see Standing statutory construction, see Statutory

construction rules stays

removal, 1766, 1789–91 voluntary departure, 1793

sua sponte reopening, 1604–5, 1750–52

summary removal, 200–201, 1634–35, 1666, 1802

terrorist removal, 623 terrorist suspects, 457–60 torture claims, 650, 892, 1702–4 TPS, 756–57 transfer of case to and from circuit

court, 1664

Tucker Act, 1844–45 unfair immigration employment

practices, 1948–49 venue, 1793–95 visa denials, 981, 1725–28, 1770–71 voluntary departure, 1484–86, 1766 waiver of review, 1744–46 waivers, 1678–91 withholding of removal, 735–36,

879–93, 1768–71 wrongful deportation, 1748, 1791–92

jurisdiction, see Federal jurisdiction; specific procedural headings

juveniles (see also Children; Minors) admission of deportability, 591 court dependents, see Special immi-

grant juveniles crimes affecting status, 89–90, 312–13 detention, see Detention, subhead:

Children and families expedited removal, 199 juvenile delinquency

convictions, see Convictions Juvenile Delinquency Act, 41, 89–

90, 312, 325, 370 parental notice of criminal charges, 370

K

K-1 & K-2 visas (fiancé(e)s and their children), 1131–37

adjustment of status, 1135–36, 1260–61, 1267

bars (numerical, time, criminal) to approval, 1133–35

change of status not permitted, 1136 criminal grounds barring petitioner,

1133–35 criminal records of petitioner, 1131–32 criteria, 1131 death of petitioner, 1132 denial, 1133–35 employment, 1135 Marriage Fraud Amendments Act,

application, 1135 petition required, 1131 petitioner barred, 1133–35 procedure, 1131–35 review, 1136–37 sexual abuse of minor barring peti-

tion, 1133–34 waivers, 1133–34

K-3 & K-4 visas (spouses awaiting IVs and their children), 1137–39

adjustment, 1138–39 aged-out children, 1137

admission, 1138 advance parole, 1139 change of status barred, 1138 children, 1137

SUBJECT MATTER INDEX labor certification

2307

criminal grounds barring petitioner, 1138

criminal record of petitioner, 1138 death of petitioner, 1138 employment authorized, 1139 extension, 1138 multiple filings, notification to bene-

ficiary, 1138 petition barred, 1138 procedure, 1137–39 sexual abuse of minor barring peti-

tion, 1138 termination, 1138 travel, 1139 waivers, 1138

L

L visas (intracompany transferees), 1091–1107

accounting firms, 1091, 1095 activity of companies, 1095–96 adjustment of status

effect of adjustment application, 1105, 1280

extension while adjustment pend-ing, 1105, 1280

travel without abandoning adjust-ment, 1105–6, 1277

administrative review, 1105 advance parole not necessary,

1105–6, 1277 affiliation, 1095 agency employment, 1093 amendments to petition, 1104 appeal to AAO, 1105 blanket procedure, 1106–7 burden of proof, 1094 children, 1106 compensation, 1093 definition, generally, 1091 denial, 1105 dual intent, 908, 1091 employee defined, 1092–93 employer, change in, 1104 executive, defined, 1098 export control (EAR & ITAR) vio-

lations, 152–53, 1104 franchising agreements, 1094–95 fraud prevention fee, 1103 full-time services not required,

1092, 1104 intending immigrant, exempt from,

908, 1091 job shop, 1093, 1102, 1106 joint venture, 1094 judicial review, 1105 L-1 Visa Reform Act of 2004, 18–

19, 1091, 1092, 1093 legislative history, 1091 majority ownership, not necessary,

1094 manager, defined, 1096–98

new office, 1103 nonprofit corporation eligible, 1091,

1106 notice of intent to deny (NOID), 1105 offsite work, 1093, 1102 one-year employment req’t, 1092 outsourced person, not employee, 1093 owner as beneficiary, 1092–93 ownership issues, 1094–95 partnership, 1091, 1094, 1095 part-time employment, 1092, 1104 procedures, 913–14, 1103–7 qualifying organizations, 1094–95 request for evidence (RFE), 1105 requirements, 1091–1103 revocation, 1105 size of company irrelevant, 1103 sole proprietorship, 1093 specialized knowledge, defined,

1098–1102 specialized knowledge professional,

defined, 1102 spouse and children, 15, 1106 startup company, 1103 subsidiary, 1094 temporariness, 1093–94 travel during pendency of adjust-

ment, 1105–6, 1277 labor certification (LC), 1373–1462 30- and 180-day recruitment re-

quirements, 1393–94 30-day response time to audit, 1404–5 45-day rule (pre-PERM), 1449–50 §245(i), 1266–74 ability to pay wage, 1368–71, 1440 able, qualified and available, 1373,

1447 advertising, 1387–89, 1409 aging-out children, no expediting

for, 1414 alternative work experience, 1427–29 amendment to, 1415 appeal process, 1375, 1416, 1455–

62, 1591 athletes, 1374, 1415, 1436, 1453 attestations, 1442 attorneys

debarment, 1411 fees

EAJA recovery, 1462, 1864 employee barred from paying,

1411 participation in process, 1445–46 sanctions, 1462 suspension of attorney or fraud, ef-

fect on bona fides of job offer, 1441–42

audit, 1404–8 bargaining representative, notice to,

1401–3, 1452 bona fide job offer, 1438–42 bona fide prior employment, 1423 business expansion, 1420–21, 1430

business necessity, 1429–32 cancellation of certification by

DOS, 1367 certifying officer, relationship to job

service, 1373 combination of jobs, 1427 commuting jobs, 1397 competence, 1418 compliance with state, federal and

local law, 1444 cooks, 1431–32 copy of LC, see subhead: Duplicate

LC (in this heading) death of petitioner, see Death of

petitioner debarment, 1411 decision by CO, 1411–13 degree not necessary if course work

complete, 1422–23 delay in contacting applicant not

permitted, 1449–50 denial, 1411–13, 1416 denial of applicants, lawful job re-

lated reason for, 1445–51 Dictionary of Occupational Titles

(DOT), 1319, 1416, 1419, 1425 discrimination, refusal to hire U.S.

worker, 1933–34, 1936 documentation, 1383–84, 1405,

1406, 1427 due process, 1380 duplicate LC, 1414 EB-1s, no LC requirement, 1301,

1307, 1308 EB-2 NIWs, see National interest

waivers education/training/experience re-

quirements, 1368, 1416–24 employees, notice to, 1401–3, 1452 employer, defined, 1377 employer sanctions, 1884–85 employment, authorization, 1372 employment history verified, 1418,

1451 English language proficiency, 1417,

1426–27 entertainers, see Entertainers errors and omissions (typos), 1377–83 exceptional ability employees,

1454–55 expansion of business, 1420–21,

1430 expedite for aging-out children not

allowed, 1414 experience req’ts, 1368, 1419–24 expert opinion, 1427 family employment, 1423, 1438–39 federal or state law not violated, 1444 fees, 1411 FEIN, 1377, 1422 filing deadline for appeal, 1458–59 filing deadline for ETA 9089, 1384,

1393–94

labor certification, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2308

foreign degrees equivalent, see For-eign degrees labor certification, cont’d

foreign language, 1426–27, 1430–31 forms, 1376–84 fringe benefits, 1436 full-time and permanent, 1442–44 fundamental fairness, 1378–79, 1380 hearsay, 1413 iCERT, 1376 illegal employment as basis for ex-

perience, 1423 inadmissible without, 86 individual certification, 1375–1452 inherent job requirements, 1417–18 intent to work at job, 1371 interview, 1445–51 invalidation of, 1415 investigation of LC application pro-

cess, 1411 investors, 1439 job duties, 1416–24 job order with SWA, 1385–87 job terms contrary to law, 1444 judicial review, see Judicial review language requirement, 1426–27,

1430–31 layoffs, 1444–45 legislative history, 1373 licensure requirements, 1419 live-in requirement, 1431, 1453 location of job, 1445 lost LC, see subhead: Duplicate LC

(in this heading) master’s degree, 1310–12, 1426, 1431 methods of certification, 1373–75 metropolitan statistical area (MSA),

1362–63 minimum requirements, 1416–19 modification of the LC, 1415 national interest waivers, see Na-

tional interest waivers national office, direct processing,

1453 new job created, 1421, 1440 no smoking, 1418 notice of findings eliminated, 1375 notice to bargaining representative,

1401–3, 1452 NPWC (National Prevailing Wage

Center), 1384 nurses, see Nurses occupations, list of, Apdx A O*NET, 1067, 1319, 1416, 1419,

1424–25, 1432, 1436 on-the-job-experience, 1420–22 overqualified applicant, 1447 parent corporation employment, 1422 performance testing, 1418 performing artists, 1454–55 PERM, 1374–1452 (see also specif-

ic subheadings in this heading) physical therapists, 1454 physicians, 1318

posting, 1401–3, 1452 prevailing wage, 1432–38 prior employment, 1419–24 procedure, 1375–1413 purchase of LC, 1415 readvertising (pre-PERM), 1408 reconsideration, 1458 recruitment, 1384–1401, 1445–52

recruitment report, 1403–4 supervised recruitment, 1408–11

reduction in recruitment (RIR), 1373–74

references, 1417–18, 1451 refiling under PERM, 1375 reissuing LC, 1414 requirements, 1373 (see also specif-

ic subheadings in this heading) resume inadequate, 1447–48 retention of LC by agency, 1414 return receipt mail, 1448–49 revocation by DOL, 1415 revocation by DOS, 1367 sale of LC, 1415 Schedule A, 1310, 1374, 1452–55 Schedule B, 1374 seasonal or permanent work, 1443 self-employment prohibited, 1416 sole proprietorship, 1422 specially handled cases, 1452–55

athletes, 1374, 1415, 1436, 1453 performing artists, 1454–55 posting requirement, 1452, 1454 teachers, 1374, 1403, 1431, 1433,

1443, 1452–53 staffing companies, 1444 standard metropolitan statistical ar-

ea, 1362–63 standard of review of BALCA de-

terminations, 1462 strike or lockout not existent, 1444 subcontracting prohibited, 1416 substitution for athletes, 1365 substitution of beneficiary, 1362,

1414–15 substitution of employer, 1363, 1415 successor employer, 1363, 1415 suspension of LC application pro-

cess, 1411 SVP (specific vocational preparation),

1320, 1416, 1419, 1425–26, 1432 teachers, 1374, 1403, 1431, 1433,

1443, 1452–53 technical and employment guidance

letters (TEGLs), 1373 Technical Assistance Guide (TAG),

1373 temporary or permanent work, 1444 testing performance prior to hire, 1418 trustworthiness, 1418 unduly restrictive, 1424–32 unfair immigration employment

practice, 1936 unstated job requirements, 1417–18

USCIS review, 1368–72 validity of grant, 1413–14 virtual office, 1441 wage increase affecting certifica-

tion, 1366, 1436 wages at time of filing, 1436 waiver of recruitment, 1453–55 withdrawal of, 1416 work authorization, not conferred,

1372 work authorization or SSN request

impermissible, 1451 work history, verification of, 1418,

1451 work schedules, unduly restrictive,

1427

labor condition applications (LCAs), 990, 1005–28

administrative hearing, 1024–25 amending, 1017 complaints filed, 1018–20 dependent employers, 990, 1005,

1016, 1027–28 electronic filing, 1005, 1010, 1015 electronic posting, 1017 faxback processing no longer used,

1015 FEIN, 1005, 1014–15 hearing before ALJ, 1024–25 iCERT, 990, 1005, 1010, 1015 judicial review, 1026 material fact, 1020 Mexican TN, 938 penalties for noncompliance, 1020–24 prevailing wage, 1010–14 procedure, 1015–17 retention of PWD, 1065 retention of records by employer

and DOL, 1016 violations, 1018–24 whistleblowers, 1024 willful violators, 990, 1005, 1016,

1027–28 labor law, 408, 1924–33 challenge to NTA based on unfair

labor practice, 482 evidence in deportation proceeding,

1925 picket line arrest, 408, 1926 undocumented person’s rights, 408,

1924–33 laboratory technicians inadmissible without certificate, 89

laches attorney sanctions, 546 BIA, 1538 denaturalization, 1991–92 federal litigation, 1743 fines, 387 forfeiture, 358

Laotian adjustment, 1233

SUBJECT MATTER INDEX legitimacy and paternity

2309

laptop border searches, 421–22 LAU, see Legalization Appeals Unit Lautenberg amendment, 750 law enforcement immigration laws enforced by local

police, 425–26 law of the case aggravated felony, 1663–64 change of venue, 487, 616 circuit court, 1772 habeas corpus, 1663–64

law students/law graduates, 542

lawful permanent residents (LPRs), 1165–1297

abandonment of residency, 1165, 1283, 1285–88

adjustment of status, see Adjust-ment of status

admissibility, presumption against, 1229

admissibility on reentry, 68–70, 191–94, 204–5, 208, 225–26, 1165, 1264–66, 1285–88

affidavits of support, see Affidavits of support

aged-out children, 1169 alien card, 1165, 1283–84 battered persons, see VAWA peti-

tioners brothers and sisters, 1174, 1179–80,

1191 burden of proof, 70, 201–2, 208,

225–26, 1229 Cambodian adjustment, 1233 cancellation of removal, 178, 1487–

1504 chargeability of visa, 1217–19 child, defined, 1174–90 children born abroad, 1288 confiscation of card, 423, 1284 constitutional rights, 46–47, 68–70,

208, 210–14, 449–56, 631–39 consular processing, see Consular

processing Cuban Adjustment, see Cubans defined, 1165 denaturalization for crimes commit-

ted while LPR, 1993–94 derivative status, 1222–29 diplomats, see Diplomats diversity immigrants, see Diversity

immigrants driver’s licenses, see Driver’s li-

censes dual intent, 908, 939, 990 employment-based petitions, see

Employment-based immigra-tion; Special immigrants; specif-ic visas and professions

family-based petitions, see Family-sponsored immigration

Fleuti doctrine, 47, 68–70, 1288 green cards, see Green cards Haitians, see Haitians Homeland Security Act procedures,

1247–48 Hungarians, see Hungarians immediate relatives, see Family-

sponsored immigration INA §212(c) relief, see INA §212(c) Laotian adjustment, see Laotian ad-

justment legalization programs, see Legalization lottery, see Diversity immigrants maintenance of, 1285–88 marriage, see Family-sponsored

immigration medical exam, 1247 methods to obtain residency, 1165–66 name check procedure, 1247 National Visa Center, 1245 Nicaraguan adjustment, 10, 1232 numerical limitations, see Numeri-

cal limitations oversubscribed countries, 1229 parents, 1167, 1173, 1174, 1181, 1191 petitions

adverse evidence, right to respond, 1241

approval, 1240–41, 1362–63 birth certificate delayed, 1238 confidential evidence, 1240 consul’s return of petition to DHS,

1248, 1368 death of petitioner, see Death of pe-

titioner denials, 190, 1241–42, 1243–45,

1248–49 deportation not stayed, 1240 eligible at filing, 1239 employment upon filing, 1280,

1372, 1920 employment-based, 1361–68 family based, 1167, 1174–1216 homeless petitions, 1246 parents, 1167, 1173, 1174, 1181,

1191 post-submission changes, 1361 pre-adjudication not permitted,

1362 rebut evidence, 1241, 1367 records unavailable, 1237 replacement of card, 1283–84 replacement visa, 1249 VAWA, see VAWA petitioners

police certificates, 1246–47 Polish nationals, see Polish nationals preference/quota, see Numerical

limitations priority dates, see Priority dates process to obtain, 1165–66 public benefits, 1294–96, Apdx F records unavailable, 1237

reentry, 46–47, 68–70, 194, 1165, 1282–83

reentry permit, 1282–83 registry, 1166 reinstatement in removal hearing,

1264–66, 1531–32 removal (deportation), 1165, 1264–

66, 1282, 1288, 1531–32 bar to adjustment, 1253–62, 1467–

68 new adjustment of status in pro-

ceedings, 1529–32 removal (inadmissible), 68–70, 199,

204–6, 225–26, 1165, 1264–66 replacement card, 1283–84 rescission, 1280–81 residence card, 1165, 1283–84 return of petition, 1248, 1368 returning resident, 46–47, 68–70,

194–96, 204–6, 208, 1165, 1282–83

revocation of petition, 1242–43, 1366–67

second residency, 1285 security procedures, 1261 Social Security, payments to, 1290–91 Social Security card, 1291–93 special immigrants, see Special im-

migrants; specific types of im-migrants

status of, 1165 suspension, 1166, 1513–14 Syrian adjustment, see Syrians taxation of, 1288–90 termination of, 1288 third-country processing, 1245–46 transfer family, 1262–63 travel, 1282–83 unavailable records, 1237 USA PATRIOT Act, 1233 verifying residency, 1284–85 Vietnam, 1233 widowers, 1167–68, 1208–9, 1242–43

legalization, 1949–51 administrative review, 1587, 1589 appeals, 1587 confidentiality, 578, 1950–51 criminal penalties for fraud, 366 family unity program, 1950 under INA 245A, 1949–50 judicial review, see Judicial review LIFE Act, 14, 1950 special agricultural workers

(SAWs), 1950 Legalization Appeals Unit (LAU),

1587 legislation, see Federal authority to

regulate immigration; History of immigration laws; State and lo-cal government; specific laws

legitimacy and paternity, 1175–77, 1183

lenity, rule of KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2310

lenity, rule of, 274, 582–83, 1787, 1808–9

letter opinion by DHS not final agency decision, 1644,

1738 Liberians DED, 751 TPS, 760

LIFE Act legalization, see Legaliza-tion

litigation, 1825–1869 42 USC §1981, 1826 42 USC §1983, 1825–26 age discrimination regarding em-

ployment, 1931 agency discretion, 981, 1554–55,

1603, 1618–20 Alien Tort Claims Act, 1835–39

TVPA distinguished, 1839, 1840 attenuation, 1743 attorneys’ fees, see Attorneys’ fees Bivens actions, 1831–34

attorneys’ fees, see Attorneys’ fees detention, 211, 456 immunity defense, 1852–54

civil RICO actions, 1932–33 civil rights claims, 1825–27 class actions, 1802–5 departure from U.S., 1747–48 Equal Access to Justice Act, see

Attorneys’ fees exhaustion of remedies, see Exhaus-

tion of administrative remedies Federal Tort Claims Act, 1827–31 harmless error, 525–28, 587–88,

1771–72 immunity

(see also subheads: Bivens actions (in this heading); specific acts in this heading)

absolute immunity, 1854–55 diplomatic immunity, 1855 Foreign Sovereign Immunities Act,

see Sovereign immunity qualified immunity, 1852–54 sovereign immunity, see Sovereign

immunity jurisdictional issues, see Federal

jurisdiction laches, 1743 post hoc rationalization, 1753–54 preclusion of review, see Judicial

review prior adjudication, 1746–47 Privacy Act, 514–17 private right of action, 1852 record, 588–89, 1755–58, 1796 scope of review, see Judicial review standard of review, see Judicial review standing, see Standing summary judgment, 1818 Title VII, 1929–31

Torture Victims Protection Act (TVPA), 7, 1839–40

actual/apparent authority, 1841 Alien Tort Claims Act, distin-

guished, 1839, 1840 corporate liability, 1842 exhaustion, 1842–43 extraordinary rendition, see Ex-

traordinary rendition political question doctrine, 1843 service of process, 1842

Trafficking Victims Protection Reauth. Act (TVPRA), 1843–44

Tucker Act, 1844–45 undocumented workers’ tort claims,

1929–31 waiver of review, 1744–46

local law enforcement, see State and local government

longshoremen, 1142 Lookout system (CLASS), see Se-

curity checks, subhead: Inspec-tion databases and programs

loss of U.S. citizenship, see Natural-ization and citizenship

lottery, see Diversity immigrants Lozada criteria, 530–33

M

M visas (vocational students), 967–70 B-1/B-2 not basis to start program, 969 change to H status, 970 commuter students from Canada

and Mexico, 968 criteria, 967–69 difference with F-1, 969–70 eligibility, 967–69 employment

practical training, 970 entry period, 968 extension of stay, 969 family members, 969 fee paid to SEVIS, 968 full course of study defined, 967–68 grace period of 30 days, 969 reinstatement, 969 SEVIS, 968

maintenance of status deportation ground, 231–32 employment-based / bridging,

1275–76 nonimmigrant visas, 929

managers, multinational L visas, 1091–1107 permanent residency, 1307–9

mandamus, jurisdiction, 1666–72 aged-out challenges, 1669 venue, 1672

manifestly contrary to law asylum, 891 standard of review, 1795

Mantis Visa checks, 914 Mariana Islands, see Northern Mar-

iana Islands Mariel Cubans parole, 214

marijuana, see Drug offenses

marriage and cohabitation (see also Family-sponsored immi-

gration; Marriage fraud) B-2 tourist status

marriage while in, 951 nonspouse partners of E, H, or L

principals, 951–52 common law marriages, 1205 detention, marriage while in, 217, 1216 foreign marriages, 1216 marriage brokers, crimes by, 368 naturalization, 1965–66 persecution, marriage as basis for, 864 polygamy, see Polygamy religious marriages, 1205–6 removal proceedings, marriage

while in, 1200–1203, 1529 same-sex marriages, see Same-sex

marriages transgender marriages, 1204–5

marriage fraud as bar to future residency, 1212–15 criminal offense, 360, 1215–16 deportation, marriage fraud as

ground, 232, 1210 divorce, sham, see Divorce Marriage Fraud Amendments Act,

5–6, 140, 1135, 1191–1216 burden of proof, 1198 conditional residency, see Family-

sponsored immigration, sub-head: Marriage-based petitions

constitutionality, 1200 legislative history, 1191 marriage in removal proceedings,

1200–1203 naturalization, 1203 removal of conditional residency

status, 1191–97 subsequent spouse, petition, 1203

misrepresentation in lieu of mar-riage fraud, 1210

relief from marriage fraud, 1532–34 validity of marriage, 1203–4, 1209–12

Marshall Islands, see Freely Asso-ciated States

master’s degree experience equivalent, 1004, 1311–12

material misrepresentation, see Fraud and misrepresentation

SUBJECT MATTER INDEX naturalization and citizenship

2311

material support, see Terrorists and terrorism

McCarran Walter Act, 4 media representatives, see I visas medical graduates, see Physicians medical grounds appeal, 77 inadmissibility, 71–77 inspection, 194

medical technologists ineligible without certificate, 86–89

medically underserved areas, see Nurses; Physicians

membership in a particular social group, see Asylees and refugees, subhead: Social group

mental disorders Adam Walsh Act and detention, 642 deportation & civil commitment, 630 inadmissibility, 74–76 indefinite detention, 639, 642 prosecutorial discretion to release,

427–28 sedation, 630

mental incompetents, see Incompe-tents

metropolitan statistical area (MSA), 1011, 1017, 1063, 1340

Mexicans (see also NAFTA; TN visas) bilateral agreement to remove, 644 border crossing cards, 909, 918, 935 commuter students, 956, 968

Micronesia, see Freely Associated States

Military Commissions Act of 2006, 24

military service deferred action for family, 1543–44 employment authorization, 1920 immigrant petitions by family of

deceased service members, 1173, 1234

MAVNI (Military Accessions Vital to National Interest program), 1920

naturalization, 17–18, 147, 1965, 1966, 1973–74, 1978–81

prosecutorial discretion NTAs, 468 parole-in-place, 64–65

self-petitioning spouse, parent or child, 1173, 1234

translators as special immigrant, 23, 1333–34

ministers, see Religious workers minors (see also Children; Juveniles) in absentia orders, 591–92, 609 expedited removal, 199

notice of hearing, 591–92 other removal, 404–5, 435–36, 590–92 sexual abuse of, see Child abuse

Miranda rights, 340, 401, 560, 642–43 misconduct by gov’t employees actions against officials, generally,

1823–69 ethical issues for DHS officers,

1355–56 reporting DHS misconduct, 370,

1356, 1827, 1834 misprision, 321–22 as aggravated felony, 280, 285,

321–22 as crime involving moral turpitude, 111 as drug-related offense, 241, 321–22

misrepresentation, see Fraud and misrepresentation

mixed motive in asylum, 694–96 models, see Fashion models modified categorical approach, see

Categorical, modified categorical approaches

money laundering, 15, 108–10, 117, 303, 1917

watch list, 192 mootness, jurisdiction, 1739–43 moral turpitude crimes, see Crimes

involving moral turpitude mothers, gestational, see Assisted

reproductive technology (ART) motions to reopen, see Reopen,

motion to multinational executives & managers L visas, 1091–1107 permanent residency, 1307–9, 1365,

1366 multiple offenses deportation ground, 239–40 inadmissible ground, 117–18

MySpace, 1211

N

N visas (parents and children of special immigrants), 1144, 1327 (see also Diplomats)

NACARA (Nicaraguan Adjust-ment and Central American Relief Act)

aged-out children, 1222 asylees and refugees, 758 battered spouses/children, 1168 Cubans, 1232 Eastern Europeans, 1519 equitable tolling, 1474, 1520–21 Guatemalans, 758, 1518 history, 10

judicial review, 1232, 1636 jurisdiction, 1232 Nicaraguans, 1232 parolees, 896 Salvadorans, 758, 1518 suspension of deportation, 1517–21 unlawful presence, 125

NAFTA (North American Free Trade Agreement), 87, 935–39, 1040 (see also TN visas)

NAICS database, see Security checks, subhead: Inspection da-tabases and programs

NAILS database, see Security checks, subhead: Inspection da-tabases and programs

name check, see Security checks National Crime Information Cen-

ter (NCIC-III) Checks, see Se-curity checks

National Defense Authorization Act, FY06, 23, 416, 1333–34, 1968

National Guard agreement with DHS, 426

national interest waivers, 1310, 1313–16

change in employer, 1316 international medical graduates

(IMGs), 1317 judicial review, 1316

National Labor Relations Act relationship to aliens, 1924–33 SSA and no-match policy, 1885–86

national origin discrimination, 41–42, 44–45, 211, 218, 467, 1116–17, 1827, 1892, 1906–7, 1934

national origin quota system, 4 National Security Entry-Exit Reg-

istration System, see NSEERS National Visa Center (NVC), 1245 nationality claim defense to removal, 476–80 judicial review, 1796

nationals of the U.S., 1987 NATO, see G visas; Special immi-

grants naturalization and citizenship,

1955–2003 120-day period to decide, 1982–83 acquisition of citizenship at birth,

580, 1956–58, Apdx B administrative naturalization, 1981–84 administrative review, 1994 admission of crime, 1970 adopted/orphan children, see

Adopted children adultery, 1971 age requirement, 1965

naturalization and citizenship, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2312

aggravated felony as bar to, 1969–70 aging out, 1223–24 application process, 1981–84 attorneys’ fees, see Attorneys’ fees battered spouses and children, 1966 bear arms, 1976 birth in U.S., 1955–56 certificate corrections, 1984 certificate of citizenship, 1962,

1963–64, 1992, 1997–98 change of address, 1983 Child Citizenship Act, 13, 1961–63 civics requirement, 1976–77 claim of, in removal, 476–80, 1999–

2000 Communism, 1976, 1981 conditional residents, 1203, 1355,

1965 continuous residence requirement,

1966–68 criminal issues, 1969–71, 2000–

2003 denaturalization, 1988–92

administrative review, 1994 for crimes committed while LPR,

1993–94 defenses, 1991–92 form of persecution, 667 illegal procurement, 1989–90, 1991 judicial review, 1998 material misrepresentation, 1988–89 military service, 1990 revocation, 1992

dependents not supported, 1971 deportation, relation to, 476–80,

1974–75, 1997, 1999–2000 derivative citizenship, 1958–63,

Apdx B constitutional claims, 1961

disabled persons, 14, 1977–78 drunk driving, 1973 dual citizenship, 1988 EB-5, 1355 elderly applicants, 1977 eligibility, 1964–81 English requirement, 1976–77 exemptions from eligibility, 1977–78 expedited oath of allegiance, 1983–84 expedited processing for children, 1983 false claims to U.S. citizenship

affecting good moral character, 1968–69

criminal penalty, 2000–2003 ground of inadmissibility, 147–49 ground of removal, 235–36

filing 3 months prior, 1982 good moral character, 1968–75

effect of proceedings on, 1974–75 inquiry limits, 1974

government knowledge require-ment, 1976–77

judicial review, see Judicial review

loss of citizenship naturalization and citizenship, cont’d acts leading to loss of citizenship,

1992 burden of proof, 1993 denaturalization, see subhead: De-

naturalization (in this heading) presumption against expatriation,

1993 voluntary relinquishment, 1992–94

married to USC, 1965–66 military service, 17–18, 1965,

1973–74, 1976, 1978–81 murder as bar to, 1969 name change, 1984 national security, 1981

CARRP program, 1973 oath, 1983–84 orphan, citizen upon entry, 1190 passport, 1984–85 physical presence requirement,

1966 proof of, 1238, 1956, 1958 reexamination, 1983 Rehabilitation Act of 1973, relation

to, 1977–78 removal, relation to, 476–80, 1974–

75, 1997, 1999–2000 rescheduling interviews, 1262 residence requirement, 1966–68 revocation, 1988–94 selective service requirement,

1972–73 special naturalization programs,

1978–81 SSI benefits, prioritizing applica-

tion, 1983 standing to raise claim, see Standing stepchildren, 1962 unlawful voting, 1971 veterans, 17–18, 1965, 1973–74,

1976, 1978–81 Nazis as bar to asylum or withholding, 728 deportation for, 234 inadmissibility for, 174

Nebraska legislation affecting immigration, 52

Nepalis F-1 employment, 959 special humanitarian relief, 751 TPS, 760

newspersons, see I visas; Special immigrants

Nicaraguan adjustment, see NACARA

NIV, see Nonimmigrants NOID, see Notice of intent to deny nolo pleas, 319, 1498–99 no-match employer sanctions regu-

lations, 1732, 1735, 1885–86

nonimmigrants, 907–1160 (see also specific visa categories

(e.g., H-1B visas), specific cat-egories of people (e.g., Canadi-ans, Physicians), and specific issues (e.g., Asylum, Change of status, Dual intent, Overstays))

adjudication of petitions, 929–33 administrative review of petition

denial, 1586–91 admission procedures, 191–94,

909–25, 934–45 advisory opinion, 913 appeal of denial of petition, 1586–91 application

at consulate, see Consular pro-cessing

at DHS for admission, 929–33 stateside processing, 912

burden of proof, 914 consular processing, see Consular

processing conviction affecting status, 952 copies submitted to USCIS, 1237 denial of visa, 190, 912–13 departure, grace period, 925 departure validation, 924–25 deportation for failure to maintain

status, 231–32 DHS approval, prior to issuance,

913–14 disclosure of records, 919–20 domicile, 908 duplicate approval notices (I-824),

910, 913 employment, 909, 933–34, 1919–24

(see also specific visas) expedited processing of cases, 930 extension, automatic, 940 Global Entry, see Security, sub-

head: Inspection databases and programs

grace period to depart, 925 IIRIRA changes, 8–10 INA §222(g), 916–18 inspection at border, 921–25 (see also

Security checks, subhead: Inspec-tion databases and programs)

intending immigrant, presumption, 907

NCIC check, 914, 1137, 1140 no visa required, 934–45 notice of intent to deny (NOID),

931–32 one nationality at a time, 909 one NIV status only, 909 originals submitted to USCIS, 933 passport validity, 909 petitions required for visa approval,

913–14 preconceived intent, 924, 927 premium processing, 929–30 presumption against admission, 907

SUBJECT MATTER INDEX overstays

2313

procedures, generally, 909–21 reciprocity, 912 records disclosure, 919–20 reissuance of visa in U.S., 920 request for evidence (RFE), 931–32 returning petitions to DHS, 920 revalidation, see Revalidation of visa revocation of visa, see Revocation security issues, 914–15 stateside processing, 912 status, change of, 926–29 status, more than one, 909 strikes, 1926 terrorism, state sponsors of, 908–9 third country processing, 912 travel, see Travel U.S., obtaining visa in, 920 validity of visa

employment change, 909 extended automatically, 940 stay, relationship to, 917 time period, 916

waiver of inadmissibility, 178–79, 908

North American Free Trade Agree-ment, see NAFTA; TN visas

North American Indians from Canada, 73, 939

North Korean Human Rights Act, 656

Northern Ireland Q-2 visas, 1119

Northern Mariana Islands (CNMI) adjustment of status, 1276 asylum, 727 Consolidated Natural Resources Act

of 2008 (CNRA), 26, 727, 945 DACA, 1541 E-2 visas, 26, 1116 employment authorization, 1920–21 expedited removal, 198 H-1B cap, 993 H-2B cap, 1078 L-1 visas, 1107 parole, 750 residence for naturalization, 1968 T and U visa AOS, 1151 transitional (CW) workers, 1123–24 U.S. citizenship, 1955 visa waiver, 26, 945

notaries applying Lozada, 530

notice asylum, see Asylees and refugees attorney and client, notice to either

or both, see Counsel, right to in absentia hearings, see in absentia

hearings NTAs, see Notice to appear voluntary departure, see Voluntary

departure

notice of intent to deny (NOID), 931–32, 1371–72

notice to appear (NTA) challenge to, 471–83 content of, 484 criteria for issuance, 470–71 failure to provide or receive as re-

moval defense, 600–606 INA §239(e) compliance, 482 initiation of proceedings, 223–24,

460–61 notice of rights in removal hearing,

483–84 service of, 483–84 stop-time rule, 1490–93 termination of proceedings, 499

NSEERS (special registration), 222–23

numerical limitations (caps and quotas)

(see also H-1B visas and other spe-cific visa types)

asylees and refugees, see Asylees and refugees

cap-gap, see H-1B visas, subhead: Caps

first quota systems, 4 immigrants, see Preference petitions nonimmigrants, 908 (see also spe-

cific visa types) nunc pro tunc permission to reap-

ply for admission, 119, 179, 228, 1474–75, 1535–36, 1544–45

nurses admissibility and certification, 86–88 EB-2 visas, 1318–19 H-1A visas, 6, 10, 1039 H-1B visas, 1039–40 H-1C visas, 12, 1039 H-2B visas, 1040 H-3 trainees, 988, 1040 history, 6, 10, 12 REAL ID Act, recaptured visas, 22 Schedule A, 1374, 1454 TN visas, 1040 VisaScreen, 1040–41

O

O visas (extraordinary ability), 1079–85

accompanists/assistants (O-2s), 1080, 1084

admission, 1084 agents, 1083 athletes, 1084 beneficiaries, multiple, 1084 change of employer, 1083 consultation, 1082–83 criteria, 1079–80

denial, 1085 distinction in the arts, 1081 dual intent, 1080, 1084 EB-1 vs. O visas, 1305 employers, more than one, 1083, 1084 event, defined, 1082 expert testimony / documentary ev-

idence, 1082 Export Administration Regulation

(EAR) violations, 152–53, 1083 extensions, 1084 extraordinary ability defined, 1080–82 extraordinary achievement defined,

1080–82 fashion models, 1038 grace period, 1085 legislative history, 1079 locations, multiple, 1083 motion picture, 1079, 1081, 1082 petition process, 1083–84 return transportation costs, 1085 revocation, 1085 self-employment, 1083 spouses and children, 1080 TV production, 1079, 1081, 1082

Obamacare, see Affordable Care Act OBIM (formerly US-VISIT), see

Security checks, subhead: In-spection databases and programs

OCAHO, see Employer sanctions Occupational Outlook Handbook,

1319 occupational therapist admissibility and certification, 88 TN visas, 936

offer of proof, 576 Office of Asylum Affairs (f/k/a

BHRHA), 780 off-record discussion by IJ, 588–

89, 1755 “on account of” in asylum defined,

676–77, 696–700 O*NET, 1319, 1416, 1419, 1424–25 professional recruitment occupa-

tions, sorted by O*NET code and annotated, Apdx A

opening statement, 556 optional practical training (OPT),

see F visas order to show cause (see also Notice to appear) transition rules, 307

orphans, see Adopted children other workers (EB-3), 1319–20 overstays (see also specific visa categories) asylum, 769, 917 Canadians under INA §222(g), 918 cancellation of visa/222(g), 916–18

overstays, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2314

consequences, 121–22, 230–32, 916–18

consular officer, inquiries by, 915 diplomats, 917, 1127, 1130 EWI, 918 exchange visitor (J), 981 extraordinary circumstances, 917 H-1B cap, relationship to, 917 information media (I visa holders), 918 Mexicans under INA §222(g), 918 new visa requirement, 916–17 parole, 918 physicians, 917 readmission of NIV holder general-

ly barred, 916–17 students, 918 overstays, cont’d ten-year bar, 121–22 three-year bar, 121–22 tracking of (US-VISIT/OBIM),

921–22 Visa Waiver Program, 918 void visa, 916–17 voluntary departure, 917

oversubscribed countries, 1229

P

P visas (athletes, artists, entertainers), 1085–91

admission, 1090 agents, 1087 athletes, 1085–86, 1088, 1090 circus, 1086, 1089 consular processing, 1090–91 consultation, 1089–90 culturally unique (P-3), 1086, 1089 denial, 1090 employer, change in, 909, 1087 entertainers in group, not individu-

ally, 1085–86, 1088–89 exchange programs (P-2), 1086, 1089 expert testimony, 1088, 1089 extensions, 1090 foreign residence required (dual

intent), 1087 “in the business,” definition, 1087 international recognition, 1088 labor certification approval, 1090 multiple employers/beneficiaries,

1087 petition process, 1087–89 revocation, 1090 sponsors, 1088 spouses/children, 1087 substitution of beneficiary, 1088 support staff, 1086, 1090 transportation costs, 1087

Palau, see Freely Associated States Palestinians asylum issues, 658

pardons, 326, 1476

parents battered, 1168–70 detention release because of paren-

tal status, 428, 469 LPR status, 1167, 1173, 1191, 1234 prosecutorial discretion in removal

proceedings (“parental interests directive”), 428, 469

parole, 203, 206, 209–10 admission, different than, 64 advance parole, see Advance parole conditional parole, 440

conditional parolee not eligible for AOS, 1251

revocation of, 430 deportation unlawful, 1792 during DHS appeal of asy-

lum/Withholding/CAT grant by IJ, 209–10

eligibility for AOS, 1251 for family members of person granted

cancellation/suspension, 1513 humanitarian parole, 215–16 ICE release on bond of “inadmissi-

ble alien” not parole, 209–10 IIRIRA changes, 10 parole-in-place, 64–65, 203 revocation, 214

habeas jurisdiction not barred, 438–39

risk classification assessment (RCA), 209–10

specific groups asylees/refugees (credible fear),

210, 750 (see also Credibility determinations)

juveniles, 209–10 Mariel Cubans, 214, 898–99 Northern Mariana Islands, 750 public interest parole (Lautenberg

Amendment), 750 termination of, 64 unlawful presence, 125–26

Parole Commission guidelines, 384 partners, domestic, see Marriage

and cohabitation partnerships E-1 partners, 1107 EB-5 investors, 1342

party defendant U.S., proper defendant to represent

all agencies, 1744 passports automated passport control, see Se-

curity checks, subhead: Inspec-tion databases and programs

cancellation, 1985–86 falsely making/altering, 278–79 machine-readable passports

(MRPs), 1985 obtaining, 1984–85

passport card, 1985 proof of citizenship, 1963, 1984 refusal to issue, 1986–87 retention for removal hearing, 423 travel, where passport not needed, 1985 using false, 364, 2002 validity, 909, 921 for VWP, 942

paternity, see Legitimacy and paternity PATRIOT Act, see USA PATRIOT

Act pattern or practice, see Asylees and

refugees penalties (see also Fines) employer sanctions, 1907–8 unfair immigration employment

practices, 1944–45 pendent review, 1641 Pennsylvania legislation affecting immigration, 52

performance test labor certifications, 1418

PERM, see Labor certification permanent resident cards, see

Green cards permanent residents, see Lawful

permanent residents persecution, see Asylees and refu-

gees, subhead: Persecution. For persecution of others as bar to status, see Asylees and refugees, subhead: Persecutors

petitions, see Employment-based immigration; Family-sponsored immigration; Immigrant visas; Lawful permanent residents; Nonimmigrants; specific nonim-migrant visa category

petty offense aggravated felony sentencing, 303 cancellation and AOS, 1506 CIMT exception, 90–91, 113 good moral character determination,

1969 physical disorder inadmissibility, 74–76

physical therapists admissibility and certification, 88–89 Schedule A, 1374, 1454 TN visas, 936

physician assistant admissibility and certification, 86–89

physicians (IMGs) B-1 available for med. student, 1044 Conrad 30 program, 16, 27, 28, 979,

984 EB-2 visas, 1316–18

SUBJECT MATTER INDEX probation

2315

H-1B visas, 1042–44 cap, 991

H-2B generally ineligible, 1043 H-3 externship, 988, 1043 inadmissibility, 86 investors, 1044 J visa requirements, 908, 918, 970,

974–75, 978–81, 991, 1043 labor certification, 1318 medical students, 1043

clerkship on B-1, 948, 1044 medically underserved areas, 917,

978–79, 1043, 1317, 1922–23 NIWs, see National interest waivers O visas, 1043 overstay (INA §222(g)), 917, 981,

985, 1043 special immigrants, 1327 TN visas, 1043

picketing, 408, 1926 plea bargains agreement by U.S. attorney not to

deport, 369 Alford pleas, 319 conviction for immigration purpos-

es, 315–20 counsel’s advice / Padilla, 316–19 fast-track pleas, 319–20

police certificates, 1246–47 enforcement of INA, 49–53, 425–

26, 445 Polish nationals cancellation of removal, 1519

political offense, 91 political opinion, see Asylees and

refugees political question jurisdiction, 1743–44 parole matters, 210–11

polygamy foreign polygamist marriages, not

recognized, 1206 ground of inadmissibility, 119

polygraph evidence, 555 portability, see Employment-based

immigration; H-1B visas; H-2A visas

PORTPASS, see Security, subhead: Inspection databases and pro-grams

post hoc rationalization, 1753–54 posting requirements, see Labor

certification; Labor condition applications

post-traumatic stress disorder, 556, 831

poverty guidelines, 79, 81, 190, 1238, 1541, 1923

precedent decisions General Counsel memoranda not

binding, 1584 unpublished AAO decisions, 1590–91 unpublished BIA decisions, 1583–84

preclusion of review, 1544, 1674–1707

preconceived intent, 924, 927, 1141, 1262, 1282

preemption constitutional issues, 49–50 detention facilities’ release of in-

formation, 216–17 employer sanctions, 1891, 1919 labor law, 1891, 1919 public benefits, 1294 state regulation of immigration, see

State and local government by treaties, 1116–17

preference petitions, 1216–29 accompanying, defined, 1218 adjustment of status, see Adjust-

ment of status adverse evidence, respond to, 1241 approvals, 1240–41, 1362–63 chargeability, 1217–19 consular processing, see Consular

processing conversion, 1220 cross-chargeability, 1218, 1230 denials, 190, 1241–42, 1366–67 derivative beneficiaries, 1222–29 employment-based petitions, see

EB-1 visas; EB-2 visas; EB-3 visas; Employment-creation vi-sas; Immigrant visas; Special immigrants; specific categories of immigrants

family-based petitions, see Family-sponsored immigration; Immi-grant visas

following to join, see Following to join foreign state chargeability, 1217–19 judicial review, 1243–45 oversubscription, 1229 priority dates, see Priority dates procedures, 1237–40 revocation, 1242–43, 1248, 1366–67 stay of deportation, 1240 venue, 1236–37

prehearing procedures removal (deportation), 518 removal (inadmissibility), 223–24

premium processing, 929–30 presentence report evidence of conviction, 572–73

presidential proclamation finding persons inadmissible, 176–77 territorial limits, 66

presumptions against admissibility (immigrants),

1229 aggravated felony, 581, 620, 621 favoring admissibility (visa), 225–

26, 915–16 intending immigrant, 907 marriage fraud, 1209 regularity, presumption of, 576,

1561 removal, 578–84

prevailing wage labor certification, 1432–38 labor condition application, 1010–14

priority dates, 1219–29, 1362–63 adopted children, 1181 aged-out children, 1222–29 athletes, 1365 change of employment, as effecting,

1362 conversion, 1220 defined, 1219 derivatives, 1222–29 for employment-based petitions,

1222, 1362 for family-based petitions, 1220–21 loss of, 1229 lost petition, preservation of original

date, 1229 for relative petitions, 1220–21 Silva letters, 1221–22 subsequent petitions, 1220 successors in interest, 1363 transfer, 1220, 1362, 1363–65 Western Hemisphere priority dates,

1221–22 Priority Enforcement Program

(PEP), see Immigration and Cus-toms Enforcement

priority workers, 1217, 1301–9 extraordinary ability, 1301–5 multinational executives and man-

agers, 1307–9 outstanding professors and re-

searchers, 1305–7 Prison Litigation Reform Act, 1665–66 prisoners early removal prior to completion of

sentence, 644 transfer treaties, 385

Privacy Act, 514–17 (see also Litigation)

private legislation, 1547 private right of action, 1852 expedited deportation, 644

probable cause, see Search and seizure probation, 329 aggravated felony, 301–3 not a sentence to confinement,

301–3, 329

professionals KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2316

professionals, see EB-1 visas; EB-2 visas; EB-3 visas; H-1B visas

professors exchange visitor, 970, 983–84 NIWs, see National interest waivers permanent residency, see EB-1 visas Schedule A, see Labor certification

prosecutorial discretion, 461–70 detention, 199–200, 427–28 employment authorization, 466, 1922 military families, 64–65 parents, 469 pending I-130s, 469 prima facie eligibility for relief,

467, 470 victims and witnesses of crimes, 468 vulnerable persons, 468

prostitution as aggravated felony, 249, 273–74 deportation for, eliminated, 249 inadmissible, 118

protective order adjustment of status, 1259 asylum denial for violation, 875 attorney sanction for violation, 547 deportation ground, 248 discretionary relief denial for viola-

tion, 1468 evidentiary issues, 577–78

provisional unlawful presence waivers, see Waivers

public benefits, 84, 1294–96, Apdx F public charge affidavits of support, see Affidavits

of support grounds of inadmissibility, 77–86 grounds of removal, 233 inspection, 194 waiver, 189

Q Q visas (cultural exchange programs),

1118–19 Q-2 visas (Irish Peace Process),

11–12, 1119 qualified immunity, see Litigation questioning noncitizens, 424 questions of law, defined, 1573–74,

1626–28, 1721 quotas, see Numerical limitations;

Preference petitions

R R visas (religious workers), 1120–22 admission, 1120–21 definition, 1120 evidence, 1121–22 minister, 1120 not-for-profit, 1120

petition, 1121–22 professional capacity, 1120

membership only required for visa, 1120

religious occupation, 1120 religious organization, 1121 religious vocation, 1120 spouse/children, 1121

race discrimination, 41–42, 44–45, 1116–17

racetrack personnel, 949 Racketeer Influenced & Corrupt

Org. Act, see RICO offenses rap sheet discretionary relief, use in, 574 evidence of conviction, 568–72

RAPS database, see Security checks, subhead: Inspection da-tabases and programs

rational basis test, 38–39 REAL ID Act, 20–22 All Writs Act, 879, 1625, 1636,

1653, 1657, 1669, 1694, 1702, 1789, 1801

asylum, 20, 715, 798–804, 818–20, 872, 879, 892–93, 1469, 1577, 1770

Australian E-3 visa, 22, 1117 burden of proof, 20–21, 404, 581–

82, 1469 CAT claims, see Convention

Against Torture collateral attack on conviction, 341 corroboration, 20, 798–99, 1770 credibility, 20, 818–20, 832–33,

1469, 1577 detention, 438–39, 640–41, 1629,

1631, 1636, 1652–55, 1678 driver’s license, see Driver’s licenses employment-based visas, recapture

of, 22 habeas corpus, 21, 438–39, 640–41,

1625–36, 1637–38, 1652–55, 1657 judicial review, 21, 438–39, 626–

27, 640–41, 1372, 1637–38, 1652–55, 1674–76, 1702–5

mandamus, 21, 438, 640–41, 1636, 1637–38, 1669–72

nurses, see Nurses questions of law, defined, 1626–28 refugees, 20, 798–804, 818–20, 900 reinstatement of removal orders,

626–27, 1705–6 relief from removal, 20–21, 581–82,

1469, 1770 standard of proof, 581–82 terrorism, 21, 156–57, 172, 233–34,

715 withholding of removal, 20, 735,

1469, 1577, 1770

reasonable-fear determination, see Asylees and refugees

reason-to-believe-standard drug trafficking, 115–17, 225, 230, 313 money laundering, 15, 117 spouse & child covered, 117, 118, 155 terrorism, 153–54 trafficking in persons, 118

recidivism §212(c) relief, 1500 possession, 258

recommendation against deporta-tion, see Judicial recommenda-tion against deportation (JRAD)

reconsideration aged-out children, 1222–29 asylum denial, 727, 768 federal review, 1597–99, 1765,

1787–89, 1795–96 motions, 1241, 1280, 1459, 1593–

94, 1599–1604 barred because relief unavailable,

1601 barred by citation to nonprecedent

decisions, 1602 numerically barred, 1600–1601 regional service center, 1620 time barred, 1599–1600

nonimmigrant visas, 920, 926, 929 record appeal, 1755–58, 1796 government obligation to disclose, 350,

511–12, 517–18, 919–20, 1469 of proceedings, 588–89 review limited to, 1756, 1796 submission of evidence after clo-

sure, 578, 589 transcript, 574–75, 1556, 1564,

1565–66, 1576, 1755 record of conviction basis for deportability, 92, 93–97,

243, 244–45, 264, 286–301, 568–72, 580–81

categorical and modified categorical approach, see Categorical, mod-ified categorical approaches

recusal of IJs, see Immigration judges redress, see Security checks, sub-

head: Inspection databases and programs

reduction in recruitment, see Labor certification

reentry after removal collateral attack on deportation or-

der, 340–50 criminal, 330–50, 374–78 immigration procedure, 623–27,

1531–32, 1538 inadmissible, 9, 111, 119–21, 134–

37, 177–78

SUBJECT MATTER INDEX removal proceedings—deportation

2317

reentry permit, 1282–83 Refugee Act of 1980, 5, 651, 749, 763 Refugee Crisis in Iraq Act of 2007,

25, 1334 refugee travel document, 894, 901,

1283, 1586 refugees, see Asylees and refugees refunds, see Fees regional centers EB-5 centers, see Employment-

creation visas service centers, see Service centers

registration failure to register, 360 failure to register, selective service,

1972–73 noncitizens, 235 NSEERS, 222–23 sex offenders, 105

registry, 1166 judicial review, 1771

regression, see Priority dates regulations (see also Table of Authorities at

p. 2075 et seq.) retroactive application, 1815

Rehabilitation Act of 1973 affecting criteria for naturalization,

1977–78 reinstatement humanitarian, 1208–9, 1219, 1235–36 I-130, 1242–43

reinstatement of removal order, 623–27

administrative review, 626 constitutional challenges, 625–26,

1705–6 INA §245(i), 625 judicial review, 626–27, 1705–6 jurisdiction, 626–27 procedures, 626 REAL ID Act, 626–27 reasonable-fear determination, 624,

775 reissuance of visas, 920 relation-back doctrine, 145–46,

619, 1015, 1804, 1865 release orders failure to comply with terms, 366

relief from removal, 1467–1547 abandonment of application, 556–

57, 578, 611, 749, 770, 791, 901, 1277, 1566–67, 1747–48

adjustment of status, see Adjust-ment of status

aggravated felons, 326, 328, 620, 621–22, 725, 731–32, 1470–72, 1477, 1479, 1480, 1489–90, 1494–96

apparent eligibility, 498–99, 787, 1517

asylum, see Asylees and refugees; Withholding of removal

burden of proof, 20–21, 98–99, 581–82, 1469

cancellation of removal, see Cancel-lation of removal

citizenship, claim to, 476–80 collateral attack, 314–15, 320–21,

340–50, 1538 criminal conduct affecting, 1470–72 deferred action, 467, 471, 1538–44 due diligence, see Due diligence due process issues, 48–49, 1472–74 equitable tolling, see Equitable tolling estoppel, 472–74, 1536–38 fundamentally fair hearing, 1470 IIRIRA changes, 8–10 inadmissible aliens, 227–28

waivers, 72–73, 117, 119–21, 128–34, 139, 146, 177–90, 1544–46

ineligibility for, 134–37, 621–22, 724–26, 1467–68, 1481–83

international law issues, 404, 482–83 marijuana conviction, 117, 242–43,

1475 marriage fraud, 1212, 1214, 1532–34 notice of relief, 498–99, 787 nunc pro tunc permission, 1474–75,

1535–36 payment of fee for, 612 private legislation, 1547 procedures for filing, 485–86, 611 protective order violation as basis to

deny relief, 1468 REAL ID Act standard, 404, 1469 right to request, 556–57 security checks, 557–58, 792, 1284,

1475 smuggling, waiver for, 139, 180,

232, 1534 standard of proof, 1469 suspension, 1524–29 timing of request for, 556–57,

1468–69 unavailability of relief, 621–22,

1467–68, 1501–2 voluntary departure, see Voluntary

departure waivers, 177–90, 1493–1502, 1532–

34, 1544–46 §212(c), 1493–1502

withdrawal of relief, 1467–68 Religious Freedom Act, Interna-

tional, 11, 174, 575, 831 religious marriages, see Marriage

and cohabitation religious persecution asylum, 854–58 deportability for, 235 inadmissibility for, 174

religious workers B-1 visas, 947 history, 6 R visas, see R visas special immigrants, 1322–26

remand asylum cases (credibility), 1578 BIA, 1569–72 court of appeals, 1765–66, 1796–1801 decision by gov’t counsel, 1800–01 final order, 1801 procedural issues in federal court,

1796–1801 reversal, distinguished, 1797–99 standard of review, 1571

removal, expedited, see Expedited removal

removal grounds, see Deportation grounds; Inadmissibility grounds

removal proceedings—deportation (see also Deportation grounds;

Removal proceedings—inad-missibility; other specific pro-cedural headings)

abandonment or withdrawal, see Relief from removal

absence of respondent at hearing, 483–84, 594–609

additional charges, 518–19 adjustment of status, 470, 491–95,

1200–1203, 1264–66, 1282, 1529–32

new adjustment for LPR in removal proceedings, 1264–66, 1498, 1532

administrative closure, 481, 586–87 after adjustment, 1264–66, 1277,

1282 aggravated felonies, 249–307, 446–

56, 581, 619–21 alienage, 580, 610–11, 621, 1484 amnesty application, 578 apparent eligibility, 498–99, 787, 1517 appeal

administrative, 1551–86 federal, 1625–1821 final order, 1637–41

appearance, waiver by counsel, 540, 589

arrest, 423–26 arrest reports, admission of, 573–74 attorney fees, 1855–69 attorney sanctions, 544–47 authentication, 566–68 Bail Reform Act, 445–46 battered spouses and children, 520,

578, 1199, 1511–13 bill of attainder, 401 bond, 430–40, 446–60 Brady rule, see Discovery

removal proceedings—deportation, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2318

burden of proof, 578–84, 605–6, 622–23

cancellation of removal, see Cancel-lation of removal

cancellation of visas, see subhead: Visas, cancellation of (in this heading)

charges, 225–26, 425, 461–70, 470–83, 483–84, 518–19

children, 199, 404–5, 435–36, 564, 590–92, 1483, 1537 removal proceedings—deportation, cont’d

citizenship claim, 476–80, 1999–2000 civil proceeding, 400–401 classified information, 576–77 closed hearing, 520, 781, 1199 closing argument, 392, 556, 588, 615 collateral attack on charge, 314–15,

1538, 1665 collateral estoppel, 610–11 commencement of proceedings,

460–61, 470–71 confidential hearing (battered

spouse), 520, 1199 constitutional protection, 47–49,

391–404 continuances, 488–97 convictions, proof of, 568–72 counsel, criminal charges against, 549 counsel, right to, 224, 485, 520–23,

785–86 counsel, role of government, 541 counsel, withdrawal of, 540 country of, 623, 627–29 court record, 588–89 criminal aliens, 619–22, 644 criminal record, admission of, 243,

244–45, 568–72 cross-examination, 549–53 de facto deportation of USC child,

404–5 deferred action, 467, 471, 1538–44 departure during appeal, 1566–67,

1747–48, 1791–92 departure prior to hearing, 595 deportation hearing retained, 485 depositions, 513 detainers, 440–45 detention, see Detention discovery, see Discovery distinguished from inadmissibility,

47–48, 63–70 documents, retention by ICE, 423 documents, timely filing, 611 double jeopardy, 390, 401 due process in, 47–48, 63–66, 391–

402 effect of deportation, 391 effective date, 303–6, 306–7, 485 embassy notification, 617–19 employment authorization, 642, 1922 equal protection claim, 38–49, 402–04 estoppel, 472–74, 1536–38

evidence, 405–10, 517–18, 549–56, 560–78

ex post facto, 400–401 expedited removal, 197–201, 621 expert testimony, 554–55 failure to appear, 137, 483–85, 594–

609 failure to depart, 365–66, 391, 642–43 failure to follow agency rules, 402 Fifth Amendment, 391–404, 408,

496, 559–60, 580 filing documents, 485–86

timeliness, 611 final order of, 1634–35, 1787–89 fine for failing to depart after final

order, 391 FOIA, 500–513 foreign law, 575–76, 1812 grounds of deportation, see Depor-

tation grounds harmless error, 525–28, 587–88,

1771–72 harsh consequences of removal, 391 hearsay, 560–65 IIRIRA changes, 8–10 IJ roles as prosecutor and adjudica-

tor are separate, 616 in absentia hearings, see In absentia

hearings incompetent, 590–94 international law bars removal,

482–83 interpretation, 584–86 interrogation procedures, 416 interrogatories, 513 investors, 1355 Jencks Act, 514 judicial deportation, 8, 10, 384, 622 lawful permanent resident, 1165, 1283 lenity, see Rule of lenity marriage in, 491–95, 1200–1203,

1256–58, 1529–32 minors, 590–92 Miranda rights, 401, 560 naturalization, relation to, 476–80,

1974–75, 1999–2000 notice of deportation, 630 notice to appear (NTA), see Notice

to appear notice to embassy, 617–19 offer of proof, 576 opening statement, 556 order to show cause

service of, 307, 485 transition rules, 307

passport seizure, 423 physical removal, 627–43

absconders, 642–43 Adam Walsh Act, see Child abuse civil commitment instead of re-

moval, 630 criteria, 627–29 designation of country, 627–29

DHS disregard designation, 629 DHS procedures, detention, 635–36 due process challenge, 629–30 early removal of nonviolent offend-

ers, 644 employment, 642 erroneous, 1748 fugitive status, 369, 642–43 jurisdiction, 642–43 notification, 630 return after successful challenge to

removal, 1792 sedation of deportee, 630 self-removal, see Self-removal time limitation on, 630–33

police reports, 573–74 polygraph evidence, 555 practice manual, EOIR, 553–54 prehearing conference, 518 prehearing procedures, 460–518 presence of respondent, 589–90 prior order attacked, 1538 prison as site of hearing, 621 prisoner transfer treaty, 385 prisoners, early removal, 644 procedural rights, 391–402 prosecutorial discretion, 461–70 readmission after, 119–21 record, 588–89, 1755–58 recusal of IJ, 612–17 reentry after deportation, 330–50,

623–27 regulations, failure to follow, 402 reinstatement of LPR status, 1531–32 reinstatement of removal order,

623–27 relation back to cure defect, 619 relief from removal, see Adjustment

of status; Asylees and refugees; Cancellation of removal; Relief from removal; Voluntary depar-ture

repapering, 481, 1528–29 res judicata, 472–74 resident status terminated, 1288 retention of documents by ICE, 423 return after successful challenge to

removal, 1792 rights explained, 497–99 rights of deportable aliens, 47–49,

391–404 search and seizure, see Search and

seizure security check to file for relief, 557–

58, 1284 sedation of deportee, 630 selective prosecution, 471–72 self-incrimination, 416, 559–60, 609 sentence for immigration purposes,

117–18, 236–37, 301–3, 313–15 sentenced to removal, 329–30, 384,

622, 644 speedy trial, 385–86, 401

SUBJECT MATTER INDEX rescission

2319

standard of review, 1758–72 state and local law enforcement,

425–26 statements taken, 574–75 statute of limitations, see Statutes of

limitations statutory construction, 582–83,

1805–20 stay of removal, 643–44, 1240, 1564 stipulation to removal, 610, 622 subpoena, 513, 622–23 summary decision, 610 summary removal, 619–21 suppression of evidence, 405–10,

558–59 suspension, 1524–29 telephonic, 589 termination of proceedings, 471–83,

499 terrorist removal, 622–23 time limit on deportation, 630–36 translation, documentary form of,

575–76, 584–86 travel during, 1283 treaty transfers for prisoners, 385 unfair labor practice, 408 venue, 460, 486–87 video hearing, 589–90 visas, cancellation of, 204, 627 voluntary departure, 1478–83

reinstatement on appeal, 1567–69 waivers, 177–89, 1532–34, 1544–46 withdrawal of relief, 1467–68 witnesses in criminal proceeding,

369–70 wrongful departure, 1566–67,

1597–99, 1748, 1791–92

removal proceedings—inadmissibility, 191–230

(see also Admission; Inadmissibility grounds; Removal proceedings—deportation; Waivers; other spe-cific procedural headings)

in absentia hearings, see in absentia hearings

adjustment of status, 227 admission, 63–70, 227 appeal

administrative, 230, 1551–86 judicial, 1625–31, 1787–1802

asylum request, 197–99, 227, 776–85 attorneys’ fees, see Attorneys’ fees burden of proof, 63–65, 70, 77, 98–

99, 127, 145, 149, 158–59, 201–2, 225–26, 560, 578–84

classified information, 201, 274, 576–77

collateral estoppel, 610–11 consequences of, 119–21, 228–29 constitutional protection, 45–47, 66,

212, 450–54

continuances, 225 counsel, right to, 224 cross examination, 224–25, 549–53 detention, see Detention distinguished from deportation, 45–47 due process, 45–47, 66, 212, 226–27 effective date of IIRIRA changes, 223 employment authorization, 642, 1922 evidence, 225–26, 517–18, 549–56,

560–78 exclusion hearing maintained, 223 expedited removal, 197–201 expert testimony, 554–55 filing in immigration court, 485–86 final order, 1637–41, 1787–89 fundamentally fair hearing, 47–48,

224–25, 1470 hearing, rights at, 224–27 IIRIRA effects, 8–10, 223 interpretation, 227, 584–86 lawful permanent residents, 46–47,

68–70, 225–26 travel during hearing, 1283

marriage in, 1200–1203 minors, 199, 590–92 naturalization, relation to, 476–80,

1974–75 notice of, 223–24 nunc pro tunc, readmission, 228,

1535–36 offer of proof, 576 open hearing, 224–25 parole, 203, 209–14

credible fear, persons who establish, 210

humanitarian, 215–16 indefinitely detained, 212–14 juveniles, 209–10, 216 Mariel Cubans, 214 revocation, 214

passport seizure, 423 physical removal, 229, 627–43 polygraph evidence, 555 prehearing matters, 223–24 prosecutorial discretion, 461–70 recusal of immigration judge, 612–17 relief unavailable, 1467–68 removal hearing, 225–26 resident status terminated, 1288 return after successful challenge to

removal, 1747–48 rights of inadmissible persons, 45–

47, 63–70, 224–27 security procedures to file for relief,

557–58, 771, 792 security threat, 201 sequestration of witness, 578 stay of removal, 201, 230 stipulation to removal, 610, 622 stowaways, 201 summary decision, 228 summary removal, 197–201 terrorist removal, 201, 622–23

translation, 227, 575–76, 584–86 travel during, 1283 venue, change, 224, 486–87 voluntary departure available, 227–

28, 1478–83 withdrawal of admission applica-

tion, 203–4, 227 reopen, motion to, 1592–1620 AAO appeal / service center review,

1586–91 abuse of discretion standard, 880–

81, 1618–20, 1762–65 administrative notice, 1585–86 agreement by DHS to reopen,

1605–6 asylum/withholding, 876–79, 1606–11 barred, 1599–1616 battered spouse/child, 1172, 1616 changed country conditions, 1606–11 consolidation in appeals court, 1796 counsel ineffective, 523–35, 1595–96 criteria, 1592–93, 1762, 1795–96 departure during, 1566–67 deported during, 1603 discretionary denials, 1618–20 district director, filed before, 1620 eligibility for, 1594–95 equitable tolling, see Equitable tolling explanation for previous failure to

apply, 1602 factual basis, 1619–20 filing motion during proceedings,

1569, 1765 in absentia hearings, see In absentia

hearings INA §212(c), 1498–99 judicial review, 1762–65, 1795–96 marriage petitions, 1201, 1602–3 numerical bar, 1600–1601 opposition untimely, 1617 procedures, generally, 1592–93 regional service center, 1620 relief barred by statute, 1601 revocation of employment petitions,

1368 single BIA member decides, 1556 stay of removal, not automatic dur-

ing, 1616 sua sponte, 1604–5, 1750–52 time bar, 1599–1600 unavailability of information, 1616–17

repapering, 481, 1528–29 replacement of immigrant visa, 1249 requests for evidence (RFEs), 931–

32, 1105, 1240, 1371–72 res judicata deportation, 472–74 habeas corpus, 1663–64

rescheduling interviews, see Interviews rescission, 1280–81 judicial review, see Judicial review

research resources KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2320

research resources, Apdx H researchers, see EB-1 visas re-sentenced, 301–03 residency, see Lawful permanent

residents retroactivity aggravated felony provisions, 306–07 regulations, 1815 statutory construction, 1812–18

return after successful challenge to removal, 1747–48

return of petition by consular of-ficer, 1248, 1368

returning residents, 9, 68–70, 194–96, 225–26, 1165, 1282–83

burden of proof, 70, 225–26 revalidation, automatic, 940 revalidation of visa, 920 review, see Administrative review;

Federal jurisdiction; Judicial review revocation asylum, 774, 895–96 death of petitioner, see Death of

petitioner employment-based petition, 1366–67 family petition, 1242–43 H-1B, 1033 naturalization, 1988–94 nonimmigrant, 918–19, 1105, 1766,

1770–71 VAWA petitioners, 1172

RFE, see Requests for evidence RICO offenses as aggravated felony, 273 civil actions, see Litigation predicate offenses, 368, 1932–33

ripeness, 1737–39 risk classification assessment

(RCA), see Parole Rule 11 to withdraw plea, 328 Rule 32 to vacate conviction, 328 Rule 35 to correct or reduce sen-

tence, 328 rule of lenity, see Lenity, rule of rulemaking vs. adjudication, 1820

S S visas, 1144–45 adjustment of status, 1145, 1261 asylum, 782 change of status, 927, 1144 criteria, 1144 family members, 1144 numerical limitation, 1144 procedure, 1145

safe haven, 649, 773

safe-harbor provision prevailing wage for H-1B, 1012

Salvadorans ABC litigation, 10, 757–58, 772,

1518–19 cancellation of removal, 1517–21 temporary protected status, 757

same-sex marriages asylum, 771, 893, 900 fiancées, 1131 inadmissibility, 117, 155 naturalization, 1965–66 permanent residency, 1205, 1361 prosecutorial discretion, 466 refugees, 657, 763, 899 relief from removal, 1474 social security, 1291–92 temporary protected status, 754 waivers, 128, 178

sanctions, see Attorneys; Employer sanctions

Save Our Small and Seasonal Businesses Act, 21–22

Schedule A, see Labor certification Schedule B, see Labor certification scope of review before BIA, see BIA review federal court, see Judicial review

sealed records/protective orders asylum denial for violation, 875 attorney sanction for violation, 547 discretionary relief denial for viola-

tion, 1468 evidentiary issues, 577–78

search and seizure, 405–22 application to aliens, 405 area control operation, 417–22 attorneys’ files, 418 audits, 1896 border searches, 420–22 churches, 422 civil proceedings for criminal pur-

poses, 409–10 consent to, 419–20 document retention by ICE, 423 driver’s license, 422 egregious violation, Fourth

Amendment, 406–07 electronic surveillance, 408, 420 employer sanctions, 1894–96 factory sweeps, 417–18 Fifth Amendment, 408 First Amendment, 408 Fourth Amendment, 405–07 frisking, 415 fruits of unconstitutional search, 409 good faith exception, 415 inspection of I-9s, 1894–96 international waters, 422 interrogation, 411–17 laptop border searches, 421–22

motion to suppress, 405–09, 558–59 open fields, 419 probable cause standard relaxed in

immigration, 418 reasonable suspicion, 411–15, 1893 recordings, consensual, 420 schools, 422 seizure, 415 self-incrimination, see Self-

incrimination standing, 418 sting operation, 422 stop, 411–15 subpoenas, 422–23, 1895 suppression, 406–07, 558–59

criminal reentry case, 335 suppression motion, 405–09, 558–59 unfair labor practice, 408, 1924–25 use of force, 416–17 validity, 418–20 Vienna Convention on Consular

Relations, 408 with warrant, 418–19, 1895–96 warrant, standard, 418 warrant used improperly, 409 warrantless search, 419–20, 1896 wiretap, 420

second preference, see Employment-based immigration; Family-sponsored immigration; V visas

Secure Communities Initiative, see Immigration and Customs En-forcement

Secure Flight Program, see Securi-ty checks, subhead: Inspection databases and programs

securities law and EB-5 investors, 1356–59

security checks adjustment of status, 1261 asylum, 557–58, 771, 792 bond, 433 consular processing for IVs, 1247 consular processing for NIVs, 914–15 inspection databases and programs

ABTC, 196 ADIS (Arrival & Departure Info.

Sys.), 192–93, 923 Privacy Act challenge, 192–93 Privacy Act exemptions, 516

APIS (Advance Passenger Info. Sys.), 191, 922

automated passport control, 196 BioVisa Program, 910 CLASS, 191, 771, 914–15, 918, 1247

challenge of records, 194, 914–15 disclosure of records, 194

Electronic Visa Update System (eVUS), 196–97

ESTA (Electronic Sys. for Travel Auth.), 923–24, 942

Privacy Act exemptions, 517

SUBJECT MATTER INDEX Soviet scientists

2321

FAST, 196 Global Entry / Trusted Traveler

program, 194–96 IBIS, 191, 914, 918, 923, 1261 IDENT, 191, 923

challenge of records, 193 disclosure of records, 193

Immigration Advisory Program, 192 INSPASS, 196 low-risk border travelers, 194–97 NAICS database, 974, 1067, 1376 NAILS lookout, 191, 509

failure to appear at deferred in-spection, 203

NCIC, 14, 914–15, 1247 K & V visa applicants, 1137, 1140

OBIM, see in this subheading: US-VISIT

PORTPASS, 196 RAPS, 191, 672 redress, DHS-TRIP, 193–94 Secure Flight Program, 192, 923

challenge via DHS-TRIP, 192 SENTRI, 196 TAL (Tech. Alert List), 152, 914 TECS II, 191 US-VISIT (OBIM) program, 191,

921–22 challenge to records, 193

LPR seeking I-90, 1284 removal proceedings, 557–58, 1475 security advisory opinions (SAOs), 915 Visas Condor checks, 914 Visas Donkey, 914 Visas Mantis, 914 Visas Shark, 914

security threat (see also Terrorists and terrorism) grounds for special removal, 201 visa processing, 914–15

sedation of person removed, 630 selective prosecution, 40, 48, 223,

389, 471–72, 1694, 1906–07, 1948, 2001

Selective Service naturalization requirement, 1972–73

self-incrimination, 194, 416, 559–60 continuance as basis for, 496 crimes as basis for asserting, 559–60 in absentia hearings, see In absentia

hearings removal proceeding, 559–60 suppression, 408, 558–59 testify, refusal to, 559–60

self-petitioning Cuban spouses, 897 spouses, parents and children of

serviceman killed in combat, 17–18, 1173

VAWA, see VAWA petitioners widow(er)s, 1167–68, 1208–09

self-removal, 610, 1483, 1566–67, 1597–99, 1747–48

after final order, 642 sentences and sentencing, 236–37,

301–03, 370–84 aggravated felons, 379–80 Booker, 370–73 committed for treatment, not sen-

tenced, 236–37 concurrent sentences, 301–02 correction under Rule 35

(Fed.R.Crim.P.), 328 defined, 117–18, 236–37, 301–03,

382 deportation

as part of sentence, 329–30, 384, 622 prior to completion of sentence, 8,

329–30, 384, 622, 644 downward departure, 319–20, 375–

76, 382–84 enhancement under Apprendi, 313,

357, 370 false ID/name, 381 “found in” cases, 378–79 guidelines, 370–84

parole commission guidelines, 384 indeterminate sentences, 301–02 minors, sexual abuse of, 375 notations in court record, not evi-

dence, 573 probation, 301–03, 307–08, 329–30 reduction as affecting conviction,

301–03, 328 reentry after removal, 374, 376–78 smuggling cases, 374 stipulations, 384 supervised release, 384 suspending imposition, 236–37,

301–03, 375, 382 trafficking in false documents, 381 upward adjustments, 382 vacation of sentence, see Vacatur withholding execution, 236–37,

301–03, 314 separation, see Family-sponsored

immigration, subhead: Marriage-based petitions

sequestration of witness, 578 service centers (USCIS) motions to reopen or reconsider,

1589, 1620 SEVIS (Student & Exchange Visi-

tor Info. Sys.) F (student) status, 952–53

SEVIS identification, 957–58 J (exchange visitor) status, 952–53, 983 M (vocational student) status, 952–

53, 968 sex discrimination paternity statutes, 45

sex trafficking, see Trafficking

sexual abuse of a minor, see Child abuse

sexual offender, failure to register as ground of deportation, 248–49

sexual orientation, see Homosexu-ality, Same-sex marriages

shackling of respondents, 520 siblings petition for LPR status, 1191, 1217

Sierra Leoneans TPS, 760

Silva letters, see Priority dates Singapore H-1B1 fast track visas, 1044–45

Skidmore deference, 1782–83 skilled workers, 1319–20, 1321 smuggling aliens as crime involving moral turpitude, 110 criminal grounds, 350–56 deportation, 232, 278 inadmissible, 138–39 transporting/harboring, 352–55 waiver, 139, 180, 232, 1534

social group membership, see Asylees and refugees

social networking sites, 1211 Social Security criminal fraud, 368 obtaining card, 1291–93 payments, 1290–91 priority N-400 processing for SSI

recipients, 1983 solicitation of crime, 321–22 solitary confinement, see Detention Somalians immigrant visa processing, 1246 temporary protected status, 758

South Carolina legislation affecting immigration,

52–53 South Sudanese temporary protected status, 758

sovereign immunity construction of, 1819 Foreign Sovereign Immunities Act,

1845–51 Flatow amendment, 1847–48 head of state immunity, 1851 jurisdiction, 1845–46 private right of action, 1847–48 retroactive application, 1851

LCA violation, 1024 unfair immigration employment

cases, 1947 Soviet scientists EB-2 visas, 7, 16

special agricultural workers (SAWs) KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2322

special agricultural workers (SAWs), see Legalization

special counsel, unfair immigration employment practices, 1892

special education exchange pro-gram, 989

special immigrant juveniles, 1327–33 special immigrants, 1321–36 adjustment of status, 1325, 1327,

1332, 1333, 1335 Afghanis, see Afghanis American Taiwan institute, 1326 broadcasters, 1333 burden of proof, 1229 commuters, 1321–22 court dependents, see Special immi-

grant juveniles employer unnecessary, 1321 G-4s, 1128, 1129, 1327 international medical graduates, see

Physicians Iraqis, see Iraqis juveniles, see Special immigrant

juveniles military service, 1333 military translators, 23, 1333–34 ministers, 1322, 1323, 1326 NATO, 1333 Panama Canal treaty employees,

1326 petition process, 1321 reacquisition of citizenship, 1322 religious workers, 1322–26 returning residents, 1321–22 translators for military, see Afghan-

is; Iraqis U.S. employees, 1326

special registration, see NSEERS specialty occupations, see H-1B visas specific vocational preparation (SVP),

1311–12, 1320, 1419, 1425–26 speech-language pathologist ineligible without certificate, 89

speedy trial, 385–86, 401 sponsors, see Affidavits of support;

Family-sponsored immigration; specific visa types

sponsors of terrorism, see Terror-ists and terrorism

spousal abuse (see also VAWA petitioners) as aggravated felony, 265 as crime involving moral turpitude,

100–01 as deportation ground, 246–47 employment authorization for A, E-3,

G, & H nonimmigrants, 1921 as persecution, 860–61

spouses (see also Marriage and cohabita-

tion; Marriage fraud) §245(i), see Adjustment of status petitions, see Family-sponsored

immigration preference category, same as

spouse, 1217 reason to believe charge, 118, 155

stalking grounds of deportation, 247–48

standard metropolitan statistical area (SMSA), 1362–63

standard of proof (see also Burden of proof) asylum/withholding, 700, 710, 727–

28, 735, 744–47 corroboration, 797–803 discretionary relief, 1469 employer sanctions, 1886–87, 1899 modified categorical approach, 301 removal, 581–82

standard of review asylum cases, see Asylees and refugees in Board of Immigration Appeals,

see BIA review in federal court, see Judicial review

standing, 1728–37 beneficiaries of IV and NIVs, 1735,

1736–37 cancellation claims, 1730 citizenship claims, 1736–37 FOIA-based claim against agency,

1734 Fourth Amendment violations, 418 jurisdiction, 1728–37 Lyons injunction, 1734–35 statutory standing, 1734 unions, 1732–33

stare decisis, 1820

state and local government §287(g) agreements, 426 law enforcement, 425–26 legislation, 3, 49–53

(see also Table of State Statutes, p. 2116 et seq.)

alienage, 41 fundamental rights, 43–44 national origin, 41–42 political sovereignty, 53–54 preemption, 49–50 racial discrimination, 41–42

written agreement to enforce immi-gration, 426

State Department (DOS), see De-partment of State

statelessness asylum, 658

statutes of limitations §212(h) waivers, 181 back pay, 1022–23 class actions, 1804 denaturalization / loss of citizen-

ship, 1991–92, 1998, 2001 employer sanctions, 1906 fraudulent documents, 362 habeas challenge to state conviction,

327–28 persons “found in” U.S., 336, 339 procuring naturalization in violation

of law, 2001 removal proceedings, 401 terrorism, suits against state spon-

sors of, 1847, 1849 Torture Victims Protection Act, 1840 U visas, 1158 unfair employment practices, 1947

statutory construction rules, 1805–20 agency deference, 1772–87 ameliorative statutes, 1808–09 avoidance of Fed.R.Civ.P. 12(b)(6)

dismissal, 1818–19 avoidance of serious constitutional

question, 1811–12 avoidance of violations of interna-

tional law, 1812 clear statement rule, 1707 clear statutory language, 1805–08 deportation statutes, 582–83, 1808–09 inclusion of language, 1808 jurisdictional vs. claims processing,

1810–11 multiple statutes, 1810 omission of language, 1808 retroactive application of statute,

1812–18 rulemaking vs. adjudication, 1820 sovereign immunity, see Sovereign

immunity stare decisis, see Stare decisis summary judgment, 1818 void for vagueness, see Void for

vagueness stays BIA, 643, 1564 from court of appeals

of removal, 1789–91, 1801–02 of voluntary departure, 1481–82,

1485–86, 1793 extensions of, generally, 917 judicial review, 1789–91 in removal (deportation), 643, 1564 in removal (inadmissible), 125, 201,

230 STEM (Science, Technology, Engi-

neering, Math) students, 961–62 stepchildren, 1174–75 sterilization, see Forced abor-

tion/sterilization

SUBJECT MATTER INDEX temporary protected status (TPS)

2323

sting operations, 422 stipulations binding on counsel, 538–40 judicial order of removal, 622 removal order, 610 sentencing, see Sentences and sen-

tencing stolen property as aggravated felony, 269–73

stop by law enforcement, see Search and seizure

stop-time rule, 1490–93, 1526–27 stowaways asylum/CAT claim, 201, 772, 774, 782 grounds of inadmissibility, 138 removal at border, procedure for, 201

streamlining at BIA, see Affir-mance without opinion (AWO)

strike provisions, 1926 strip searches, see Detention

students (see also F visas; J visas; M visas) Chinese Student Protection Act, see

China in-state tuition for undocumented

students, 953–54 undocumented school children,

953–54 sua sponte reopening, see Judicial

review subpoenas employer sanctions, 1895, 1898 enforcement of the INA, 422–23 removal proceedings, 513 terrorist court, 622–23

substantial-evidence test, 1768–71 substitution of beneficiaries and

employers, see Beneficiaries; Successor employers

subversives deportation of, 233 inadmissible for, 152–53

successor employers employer sanctions, 1875 employment-based petitions, 1363 H-1Bs, 1030 H-2As, 1053, 1056 labor certification, 1415

Sudanese immigrant visa processing, 1246 temporary protected status, 758

suits against the government, see Litigation

summary decisions, 228, 390, 610, 1898–99

deportable, 610 inadmissible, 228

summary judgment, 1818 summary removal, 9, 197–201, 619–

21 (see also Expedited removal) supervised release, 329–30, 447,

639–40 criminal penalties, 640 procedure, order of supervision,

639–40 subsequent to inability to remove,

639–40 suppression of evidence, see Search

and seizure surrogacy, see Assisted reproductive

technology (ART)

suspension of deportation, 1524–29 (see also Cancellation of removal) battered spouse/child, 1527–28 extreme hardship, 1514–17, 1526,

1527–28 ineligible, 1526 NACARA, see NACARA residency by, 1166 seven-year provision, 1513–14, 1525 standard of review, 1770 stop-time rule, 1526–27 ten-year provision, 1526

SVP, see Specific vocational prepa-ration

SWA (state workforce agency) (see also Labor certification) complete and file I-9s, 1875 E-Verify, 1887–92 LC process, 1385–87

Syrians student (F-1) employment, 959 Syrian Adjustment Act, 13 temporary protected status, 759

T T visas, 1145–52 abusers prohibited from visa, 1151 adjustment, 1149–51 age-out provision, 1147 application process, 1146–47 assistance, reasonable request de-

fined, 1146 cap of 5000 visas, 1148 civil action for trafficking, 1843–44,

1869 defined, 1145–46 employment, 1148 evidentiary standard, 1147 family members, 1148–49, 1149–50 INA §239(e) compliance, 1147 removal after T status, 1148 removal of T visaholders, require-

ments for arrest, 425 waiver, 1147–48, 1151

TAL (Technology Alert List), see Security checks, subhead: In-spection databases and programs

targeted employment area, 1339–40 TARP H-1Bs, see H-1B visas tax crimes tax avoidance

expatriate tax, 1289–90 good moral character issue, 1478 ground of inadmissibility, 89

tax evasion, 110 as aggravated felony, 274–78

tax returns adjustment, 1288–90 affidavit of support, 83

taxation of LPRs/NIVs, 1288–90 tax treaties, Apdx G

teachers labor certifications, 1452–53

Technology Alert List (TAL), see Security checks, subhead: In-spection databases and programs

TECS II, see Security checks, sub-head: Inspection databases and programs

telephonic and video technology appearance by counsel, 537 client communication with counsel,

219 credible-fear interviews by tele-

phone, 774–75 deposition by videotape, 370 employer-sanction hearing, vide-

otape evidence, 1899 expert and other testimony by tele-

phone, 397, 555–56 immigration court record, 588–89 “location” of electronic hearing,

589–90, 1793–95 minors and incompetents, hearings

involving, 590–94 presence of respondent by phone or

video, 589–90 temporary protected status (TPS),

751–60 adjustment of status, 752, 757 administrative closure of proceed-

ings, 756 application procedure, 755–56 asylum and TPS, 753 benefits, 752–53 cancellation of removal, time not

counted toward, 753 cancellation of visa under INA

§222(g), 917 change of status, 752 children, 754 confidentiality, 757 criminal conviction, illegible for, 754

temporary protected status (TPS), cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2324

criteria, foreign state, 751–52 deportation stayed, 752, 757–58 eligibility, 753–54 employment, 752, 757 Guatemalans, 757–58 Guineans, 760 Haitians, 758–59 Hondurans, 758 judicial review, see Judicial review late filing, 755–56 Liberians, 760 Nepalis, 760 Nicaraguans, 758 removal proceedings, 756 Salvadorans, 757–58 Sierra Leoneans, 760 Social Security benefits, 752 Somalis, 758 South Sudanese, 758 spouse, 754 Sudanese, 758 Syrians, 759 temporary status before approval, 755 termination of status, 755 travel, 752 visa cancellation, 917 withdrawal of status, 755 Yemenis, 759 temporary protected status (TPS), cont’d

temporary workers, see specific visa types

tenant-occupancy, see Employ-ment-creation visas (EB-5)

ten-year bar, see Unlawful presence termination of proceedings, see

Removal proceedings—deportation

terrorists and terrorism association with terrorist organiza-

tion, 172 asylum ineligibility, 715–16 Convention Against Torture, 623 courts, specialized, 622–23 deportable offense, 233–34 designation of terrorist organiza-

tions, 165–66 detention and bonds, 457–60, 638–39

suspected terrorists, 208, 457–60 duress defense, 155, 157, 162, 167,

169–70, 171 to material-support for terrorists,

161–63, 716 to military-type training for terror-

ism, 155, 162–63 to solicitation of funds/membership

for terrorism, 157, 163 hold policy, 164 inadmissibility, generally, 153–72 interview procedures by AG office,

416 jurisdiction, 622–23 material support, 157–65

collateral estoppel, 161

de minimis support, 159 duress exemption, see subhead: Du-

ress defense (in this heading) insignificant material support ex-

emption, 159–60, 167–68 limited material support exemption,

160–61 medical support exemption, 163–64 military training exemption, 163 waiver, 21, 167–71

membership in terrorist organiza-tion, 166–67

NCIC checks, 914–15 NSEERS, 222–23 organization defined, 165 organizations designated as terror-

ist, 165–66 presidential order on detention/trial,

457–58 private action, Anti-Terrorism Act

of 1991, 1844 reason to believe standard, 153–54 relief unavailable

adjustment, 1261 asylum, 715–16 INA §212(c), 1501 registry, 1166 suspension, 1526 voluntary departure, 1480 withholding, 715

removal procedures at border, 201 in immigration court, 622–23

retroactive application, 172 spouses and children of terrorists, 155 state sponsors of terrorism

NIV restrictions, 908–09 suits against, 1846–51

suspected terrorists, 201, 622–23 Terrorism Prevention Act of 2004,

19–20 USA PATRIOT Act, 14–15 waiver, 162, 167–71 withholding ineligibility, 734–35

Texas legislation affecting immigration, 53

third preference employment-based petitions, 1319–21 family-based petitions, 1217

three- and ten-year bars, see Un-lawful presence

Title VII relationship to aliens, 1929–31 relationship to unfair immigr. em-

ployment practices, 1939, 1941 TN visas, 936–39 business visitors, 935 children, 939 denial, 938–39 dentist, 936 dual intent, 939 E visas, 939

engineers, 937 in-state tuition, 939 L petitions, 936 management consultants, 937 NAFTA, see NAFTA nurses, see Nurses physicians, 936 procedures, 938–39 professionals, 936–38 self-employment prohibited, 937 spouses, 939 technologists, 937 visitor for business, 935

tort claims, see Litigation torture CAT, see Convention Against Torture defined, 738–41 Torture Victim Protection Act

(TVPA), see Litigation tour bus operators, 935, 949 TPS, see Temporary protected status trafficking in drugs, see Drug offenses in false documents, see Documents in firearms, 259 in persons (sex trafficking), 368, 1146

(see also T visas; VAWA petitioners) as ground of deportation, 245 as ground of inadmissibility, 118 private right of action, 1843–44, 1932 withholding documents to further,

368 Trafficking Victims Protection Acts,

see History of immigration laws; Litigation; Trafficking; VAWA petitioners

trainees, see H-3 visas; J visas transcripts, deficiencies in, 588–89,

1565–66, 1755 transfer case from or to circuit

courts, 1664 transfer of detainees attorney notification, 537 ICE standards, 428–29

Transfer Treaty, 385 transgender marriages, 1204–05 transit visas, see C visas transit without a visa (TWOV),

1141–42 adjustment, 1142, 1249

translations and translators asylum requirements, 770, 826–27 documentary forms of, 584–86 foreign documents, 575–76 right to, 227, 584–86 self-translations, 586 special immigrant status, translators

for U.S. military, 23, 1333–34

SUBJECT MATTER INDEX unlawful presence

2325

transporting/harboring or bring-ing/encouraging aliens, 350–60

travel advance parole, see Advance parole asylees/refugees, 791, 858–59, 894,

901 extension of stay pending, 926 Fleuti doctrine, 68–70 H-1 and L-1 visa holders with pend-

ing AOS, 1037, 1105–06 inspection databases and programs,

see Security checks passports, see Passports; Security

checks, subhead: Inspection da-tabases and programs

removal proceedings, travel during, 1283

by TPS grantees, see Temporary protected status

Travel Act violations aggravated felony, 258–59 drug crime, 258–59

treaty transfers of prisoners, 385 treaty visas bilateral investment treaty, 1107–

08, Apdx L NAFTA, 935–39 treaty investor visa, see E-2 visas treaty trader, see E-1 visas

TRIP Program, see Security checks, subhead: Inspection da-tabases and programs

truck driving commercial, 948–49

Trusted Traveler program, see Security, subhead: Inspection databases and programs

Tucker Act, see Litigation tuition, in-state, 953–54 TWOV, see Transit without a visa two-year foreign-residency re-

quirement, see Foreign-residency requirement

U

U visas, 1152–60 §239(e) compliance, 1157 abusers barred from visa, 1160 adjustment, 1157–59 admission, 1155 agency assisting, 1158 arrest, 1158 cap, 1155 certifying agency, 1154 certifying official, 1154 change of status, 1157 continuance of removal proceeding,

495

continued presence, 1157 crimes covered, 1152–53 defined, 1152–53 disclosure of information, 1156 duration of status, 1155 eligible for, 1152–53 employment authorized, 1155, 1159 extension of status, 1157 family members, 1155–56, 1159 inadmissibility, 1156 NTA issued, 1157 petitioning, 1153–54 procedures, 1153–54 removal of U visaholders

proceedings, 1157 requirements for arrest, 425

revocation of petition/status, 1156–57 unlawful presence, not accrued,

127, 1155 victim defined, 1152–53 waiting list, 1155 waiver, 181, 1156

unaccompanied children asylum, 592, 724, 782–84 detention, 435–36 removal proceedings, 470, 590–92,

1329–30 special immigration juveniles,

1327–33 statements of (I-213), 564

unauthorized employment, see Employer sanctions; Employ-ment authorization

unauthorized practice of law, 542

unfair immigration-related em-ployment practices, 1933–49

attorneys’ fees, see Attorneys’ fees burden of proof, 1945–47 collateral estoppel, 1948 constitutional issues, 1948 coverage, 1933–38 debarment, 1945 defenses, 1947–48 disparate impact, not basis for

claim, 1940, 1946 document abuse, 1937–38 documents, employer questioning,

1945 EEOC overlap, 1941–42 employer, 1934 employment, defined, 1933–35 good faith, defense, 1948 H-2A/2B, relationship to, 1936 hearing, 1942–44 honesty policy, defense, 1948 IIRIRA changes, 8–10, 1937 judicial review, 1771, 1948–49 knowledge standard, 1934–35 labor cert., relationship to, 1936 lost wages, civil actions for, 1931–32 mixed motive, 1945–46

office of special counsel, 1940–41 outsourcing, 1947–48 pattern or practice cases, 1940 penalties, 1944–45 private action, 1941 procedures, filing, 1940–42 protected individuals, 1933–34 reduction in force, defense, 1947 relief, 1944–45 retaliation claims, 1935 scope, 1933–38 sovereign immunity, see Sovereign

immunity statute of limitations, 1947 time limitations, 1941

unfair labor practices challenge to NTA based on unfair

labor practice, 482 suppression of evidence in removal

proceeding, 408 United Kingdom visas for UK subjects living in Ba-

hamas, Cayman, or Turks and Caicos, 939

United Nations Conventions

(see also Asylees and refugees) CAT, see Convention Against Tor-

ture Relating to the Status of Refugees,

649–50 Against Transnational Organized

Crime (TOC), 651, 873, 1146 High Commissioner for Refugees

(UNHCR) detention standards, 785 Handbook, 649–50, 902

refugee processing, 761–63 representatives in transit, see G visas

United States false claim to citizenship, see Natu-

ralization and citizenship as proper defendant, 1744, 1827–30 U.S. workers defined

employment creation, 1343 labor certification, 1373

unlawful presence AAO appeal does not stay, 127, 1590 adjustment of status, 124 advance parole, 125 aggregate, not counted, 122 asylum, 124 battered spouses/children and

VAWA, 126, 1171 Canadians, 123 cancellation of removal, 126 change of status, 122, 127 conditional residence, 124 consulate investigation, 128 DED, 124–25 deferred action, 125

unlawful presence, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2326

defined, 122–26 duration of status on I-94, 123 embassy questioning, 128 EWI, see Entry without inspection exceptions, 126–27 extension of status, 122, 127 family unity, 126 federal court litigation, 123–24 grounds of inadmissibility, 121–34 HRIFA, 125 unlawful presence, cont’d legalization, 124 minors, 126 NACARA, 125 nonimmigrants, 123 one year and seek reentry, 134–37 overstays, 916–18 parole, 125–26 removal proceedings, 123–24 reopen, motion to service center, 127 stay of removal, 125 supervision, order of, 125 suspension of deportation, 126 temporary residents, 124 three- and ten-year bars, 121–22

advance parole, 125, 1279 differences between bars, 121–22 3-year bar [(a)(9)(B)(i)(I))], 121–22 10-year bar [(a)(9)(B)(i)(II)], 121–22 waiver, 128–34

time not aggregated, 122 tolling, 127–28 TPS, 124–25 unlawful status distinguished, 122–23 voluntary departure, 123 VWP satisfactory departure, 125 waivers, see Waivers withholding of removal, 124

unpaid leave benching, 1006–07 employment rights, 1929–31 H-1B, 1032 maintenance of status, 929

U.S. Attorney plea bargain binding INS, 369

U.S. Citizenship and Immigration Services, see specific policies and programs

U.S. Customs and Border Protec-tion (CBP), see Customs and Border Protection

USA PATRIOT Act, 14–15 affidavit of support, 79 asylum, mandatory denial, 715 detention, mandatory, 208, 457–60,

638–39 money laundering, 192 terrorism issues, 153–54, 172, 233–34

(see also Terrorists and terrorism) US-VISIT (now OBIM), see Securi-

ty checks, subhead: Inspection databases and programs

Utah legislation affecting immigration, 53

V

V visas, 1139–40 adjustment, 1139 admission, 1140 aged out, 1139, 1222 Canadians, 934 children, 1139 employment, 1140, 1920–21 inadmissibility issues, 1139–40 procedure, 1140 spouse, 1139 termination, 1140 travel, 1140, 1277 unlawful presence, 1139–40

vacatur, 310–12, 327–28 as basis to reopen, 314 burden of proof, 311–12, 573 Pickering, 311–12, 579 reason to believe charge sustained, 313 of sentence, 312, 328

vaccinations, 73–74 Vaughn index, see Freedom of In-

formation Act VAWA petitioners, 1168–73 abuser barred from petitioning, 1170 adjustment of status, 1172, 1252 administrative review, 1173 affidavit of support not needed, 79 age out, 1169, 1228 arrest, 1172 bars under §245(c) not applicable,

1172 cancellation of removal, 1511–13 confidentiality, 1171 Cuban Adjustment Act, 13, 897 deferred action, 1170 divorce, 1169 domestic violence waiver, 248 employment authorization, 1126,

1127, 1129, 1170, 1921 evidentiary issues, 578, 1171, 1212,

1238, 1512 EWI bar waived, 136–37, 1172 fraud waiver, 187–89 judicial review, 1173 NACARA, 1168 naturalization, 1172, 1966 permanent residency, petition for,

1168–73, 1209, 1221, 1238 removal hearing closed, 520, 1199 removal of, requirements for arrest, 425 reopen, motion to, 1172, 1616 revocation, 1172 self-petition, 22–23, 1168–73, 1209,

1221, 1228, 1238 suspension of deportation, 1511–13,

1527–28

unlawful presence and 3/10 bar, 126, 1171

visa waiver program, 943, 1172, 1259–60

waivers, 72–73, 119–20, 126, 135, 136–37, 187–89, 248, 1171–72, 1195, 1212, 1512

venue adjustment, 1236–37, 1276–77 appeal circuit court, 590, 1630–31,

1660–62, 1748–49, 1793–95 asylum, 769, 792 bond, 204–14, 433 change of, 486–87 district court, 1660–62, 1748–49 mandamus, 1672 removal (deportation), 460, 486–87 removal (inadmissible), 224

verification of employment, see Employer sanctions

veterans naturalization, 1978–81 special immigrants, 1333 spouses, parents or child, 1173

VIBE (Validation Instrument for Business Enterprises), 932

Victims of Trafficking and Vio-lence Protection Act of 2000, see History of immigration laws

video hearings and testimony, see Telephonic and video technology

Vienna Convention on Consular Relations, 408, 617–19, 642–43, 1852, 1855

Vietnam adjustment, 14, 1233 Violence Against Women Act

(VAWA), see History of immi-gration laws; VAWA petitioners

Violent Crime Control & Law Enf. Act of 1994, 7

Virgin Islands, British visa waiver, 939

visa interviews, see Consular pro-cessing, subhead: Nonimmigrant visas

visa waiver program (VWP), 940–45 adjustment, 943, 1259–60 asylum, 199, 434–35, 944 bond if detained, 788, 944 change of status, ineligible, 927, 942 constitutionality questioned, 944–45 ESTA, see Security checks, subhead:

Inspection databases and programs extension of status, ineligible, 942 machine readable passports, 15, 942 Northern Mariana Islands, see

Northern Mariana Islands overstays, 942

SUBJECT MATTER INDEX waivers

2327

VAWA and VWP, 943–44, 1172, 1259–60

voluntary departure extension, 942, 1478

waiver of rights, 943–44

visas (see also Consular processing; Immi-

grant visas; Nonimmigrants; spe-cific visas and specific issues)

cancellation by DHS, 204, 627 cancellation under INA §222(g),

916–18 chargeability, 1217–19 classification symbols, Apdx N continuance for petition pending,

491–95 denial, 190, 912–13 disclosure of records, 919–20 electronic filing, 920 exempt from, 934–45 extension automatic, 940 notice of denial, right to, 190, 912–13 petition returned to USCIS, 920 priority dates, see Priority dates reissuance, 920 revalidation, 920, 940 revocation, 918–19, 1657, 1770–71 validity, 909, 916 waiver, 202

Visas Condor / Donkey / Mantis / Shark, see Security checks, sub-head: Inspection databases and programs

visitors, see B-1 visas; B-2 visas vocational students, see M visas void for vagueness, 1819–20 voluntary departure (VD), 1478–87 §222(g) of INA, 917 administrative, 1478 administrative review, 1484, 1486,

1567–69 aggravated felony, 1479, 1480 bar to, 1478–1980 BIA standard, 1484 bond requirement, 1478, 1480, 1482 changes to, 1483 children, 592 civil penalties, 1481 conditions for, 1482 denial of relief, 1481 detention pending departure, 1483 effective date of changes, 1483 employment authorization not per-

mitted, 1922 exhaustion of admin. remedies, 1486 expiration of VD, 1480–81 extended VD, 652, 750–51 extension from DD after grant by IJ,

1483 failure to appear for, 1467 failure to depart, 1481–83

good moral character, 1475–78 hearsay evidence, 1484 not required at master calendar, 1479 required at removal hearing conclu-

sion, 1480 inadmissible persons now eligible,

224, 227–28, 1480 ineligibility for, 1478–80 judicial review, see Judicial review master calendar, 1479 notice, 1479 prehearing voluntary departure, 1479 procedural issues, 1483–86 reinstatement on appeal

administratively by BIA, 1484, 1567–69

federal court, 1484–86 removal proceeding, 1478–83 reopened proceedings, 1482 stay in federal court, 1485–86, 1793 stipulation to, 1479 termination upon filing petition for

review, 1482, 1484–85, 1793 termination upon motion to reopen,

1481–82 three- and ten-year bar, 1486 VAWA self-petitioners, 1483 visa revocation, 919 visa waiver program, 942, 1478 withdrawal of relief, 1467–68

voting unlawfully criminal offense, 365, 2003 deportability, 236 inadmissibility, 149–50

W wage loss measure for aliens, 1931–32

waivers §274C final order, 139, 180 appeals, see BIA review; Federal

jurisdiction asylees, 74, 178, 762, 901 battered spouses/children, see

VAWA petitioners cancellation of removal

immigrants, 178, 1487–1504, 1545 nonimmigrants, 1505–29

communicable disease, 72–73, 181 Communist Party, 173 concurrent, 1545 consular officer’s criteria, 190 crimes, 117, 178–79, 181–86,

1487–1529, 1545–46 denial, right to notice of, 190 deportation

applicability, 119–21, 1467–1547 domestic violence, 248 drug abuse, no waiver, 77 drug conviction, 117, 181 previous deportation, 119–21

emergency, 179–80

EWI, 136–37 exchange students (§212(e)), 181,

927, 974–83, 1256 exclusion, previous, 119 fee, 190 foreign physician, 181, 927, 978–

81, 1043 forms for waivers, 189–90 fraud, generally, 140–46, 187–89,

1212, 1532–34 fraudulent marriage, 1212, 1532–34 health related, 71–77, 180, 181

appeal, 77 burden of proof, 77

humanitarian, 180 I-193, 179–80 I-212, 119–21 I-601, 177–78, 1546

(see also specific waiver provisions) expedite request, 177–78

I-601A, 131–34 I-602 form, 74, 762 IIRIRA changes, 8–10 immigration court fee procedure, 612 INA sections

(see also Table of Authorities list of INA sections cited (p.2054))

§209(c), 74, 178, 900, 1532, 1546 §212(c), 1487, 1493–1502, 1545 §212(d)(1), 178 §212(d)(3), 178–79, 716, 908 §212(d)(4), 179–80 §212(d)(11), 139, 180 §212(d)(12), 139, 180 §212(d)(13), 180 §212(d)(14), 181 §212(e), 181, 908, 927, 974–83 §212(g), 13, 72–73, 73–74, 181,

231, 900, 1133, 1171, 1544–45 §212(h), 5, 7, 9, 68–69, 113, 117,

181–86, 1476, 1531–32, 1535–36, 1544–45, 1545–46, 1635, 1636

§212(i), 146, 149, 187–89, 389, 1151, 1249, 1276, 1531–32, 1544–45, 1545–46

§212(k), 147, 189, 1276, 1546 §213, 189, 1546 §237(a)(1)(E), 232, 1534 §237(a)(1)(H), 146, 1192, 1198,

1212, 1532–33 §237(a)(7), 13, 248 §240A, 117, 178, 1487–1529

international law basis, 482–83 issue not raised before IJ, 1579 judicial review, see Judicial review lack of documentation, 146–47,

179–80, 189 marijuana convictions, 5, 117, 181–

86, 242–43 mental disorder, 76, 181 misrepresentations, material, 146,

187–89, 1532–33

waivers, cont’d KURZBAN’S IMMIGRATION LAW SOURCEBOOK, 15TH ED.

2328

multiple grants, 1533, 1545 nonimmigrants generally, 178–79, 908 notice of denial, 190 nunc pro tunc grants, 228, 1535–36,

1544–45 passport or NIV missing, 179–80 permanent bar, 135–37, 136–37 petty offense, 90–91 waivers, cont’d physical disorder, 76, 181 prior deportation, exclusion or re-

moval, 119–21 procedures, see specific waiver prostitution, 118, 181–86 provisional unlawful presence

waivers, 131–34 public charge, 18, 77–86, 178, 189 reapply after deportation, exclusion

or removal, 119–21 refugees, 74, 178, 762, 899–900 removal, previous, 119–21 S visas, 178 simultaneous, 1533, 1545 smuggling, 139, 180, 1534 stacking, 1533, 1545 suspension, 1525–26 T visas, 180, 1147–48 ten-year bar, 128–34 terrorism, 162, 167–71, 179 three-year bar, 128–34 totalitarian membership, 173, 178 travel documents, 146–47, 179–80, 189 tuberculosis, 72–73, 181, 1545 TWOV, 179–80 two-year foreign residency req’t, see

Foreign-residency requirement U visa, 181, 1156 U.N. Headquarters agreement, 177 unlawful presence, 128–34, 136–37

provisional unlawful presence waivers, 131–34

vaccinations, 73–74, 181 warrants administrative, 1895–96 attorney’s files, 418 search without, 419–20, 1896 standard, 418 validity, 418–20

well-founded fear, defined, 652, 710–14

Western Hemisphere priority dates, see Priority dates

Western Hemisphere Travel Initia-tive (WHTI), 924, 934–35, 939–40, 1985

whistleblowing as grounds for asylum, 677, 873–75

widows and widowers petition by immediate relatives,

1167–68, 1235–36, 1242–43 willful blindness / willful ignorance CAT claims, see Convention

Against Torture (CAT) employer sanctions, see Employer

sanctions misrepresentations on form as

ground of inadmissibility, 144 willful violators of H-1B/LCA,

1005, 1027–28 withdrawal of admission, 203–04,

227 withdrawal of applications and

petitions admission application, 203–04 asylum application, 769–70 immigrant visa petition, 1237

withholding of removal, 727–36, 776–82, 792–875 (see also Asylees and refugees;

Convention Against Torture) aggravated felony, 621–22, 725 alternate theories for claim, 850–51 asylum distinguished, 777 asylum officer, 764–65, 772, 775–76 bar to, 728–36 bond, 209–10, 434–35, 787–88 burden of proof, 808 corroboration, 20, 744, 777, 796–817 credibility, 744, 817–51 derivative status not available, 777,

785, 854, 894 difference with asylum, 777 difference with CAT, 778–80 disqualification for, 728–36 effective dates, 736 employment authorization, 1920–21 evidence, type for claim, 794–817,

851–75 judicial review

(see also Judicial review) standard of review, 881 substantial evidence, 881–93

nonpolitical crime, 733–34 particularly serious crime, 621–22,

729–33 past persecution as basis for, 702,

727–28 persecution against others, bar to

withholding, 729 prohibitions to withholding (discre-

tionary), 728–35 prohibitions to withholding (manda-

tory), 735 protective order violation as a basis

to deny relief, 1468 reasonable-fear determination, 775–76 reopen, motion to, 876–79, 1592–96 revocation, 774, 896 security ground as prohibition, 734–35 serious nonpolitical crime, 733–34 standard of proof, 778, 792–94 Torture Convention distinguished,

778–80 U.N. Convention and Protocol, 649,

727 witnesses (see also S visas; T visas; U visas) departure during criminal proceeding,

369–70 experts, 554–55 prosecutorial discretion, see Prose-

cutorial discretion work authorization, see Employ-

ment authorization workers’ compensation laws undocumented workers protection,

1924–33 writs All Writs Act, 327, 919, 1625,

1637, 1653, 1669, 1694, 1699, 1702, 1727, 1789, 1801

of audita querela, 327 of error coram nobis, 326–27 of habeas corpus, 640, 1652–66

wrongful termination of employee, 482, 1116–17, 1930

Y

Yemenis temporary protected status, 759