Model Answers for Final Exam -Immigration Law & Procedure MLAW 583, Spring 2019
Model Answers for Final Exam -Immigration Law & Procedure MLAW 583, Spring 2019
Problem #5 on pages 273-274; answer all part of the question (worth 60 points). Your client, a high school dropout, is the principal shareholder and chief executive officer of a Brazilian software firm with annual gross receipts equivalent to several million dollars. For many years, he has been thinking of establishing sales outlets in several other countries, possibly including the United States. Whatever happens with the business, he wishes to take up permanent residence here. In advising him, what do you need to know about his educational background, and what difference would that information make?
One needs to know more about the client and the business before answering this problem authoritatively. You should thoroughly interview the client to get the information necessary for sound advice. He seems most likely to qualify for the first employment-based preference, see § 203(b)(1)(C), as a multinational executive or manager. The relevant definition can be checked in § 101(a)(44). It appears he has been employed for at least one year as chief executive officer in the Brazilian company, so if he is coming to the United States to be the manager of an affiliate or subsidiary (which he could choose to incorporate here), he should qualify. High school graduation is not a prerequisite. (If he wants to apply for a diversity visa, high school could make a difference—although this client would appear to meet the other half of the qualifications for diversity immigration: two years’ experience in a field that requires such experience.) If the first employment-based preference somehow would not work for him, then advanced degrees (as hypothesized in the later variants of the problem) might help him qualify for either the second preference (requiring an advanced degree) or the third employment– based preference (with a college degree). In both of those cases, however, he will require labor certification or an appropriate waiver. Another possible option for the client is the fifth employment-based preference (EB5), which is for immigrants who “enter the United States for the purpose of engaging in a new commercial enterprise…” The immigrant must invest at least $1,000,000 and create full-time employment for at least ten persons. The investment amount can be less ($500,000) in a “targeted employment area.” Since the client has annual gross receipts equivalent to several million dollars, he may well have the resources to make this investment. If the EB5 category will work for the client, then he does not have to worry about his education level or labor certification.
Problem #3 on pages 329-330; answer both parts (a) and (b) (worth 60 points). Noncitizen E marries U.S. citizen F and is admitted as an immediate relative.
3(a) One year later a daughter is born. Six months after that, F walks out and refuses to help E in any further immigration proceedings. What are E’s options to remain in the United States as a lawful permanent resident?
INA § 216(c)(1) would normally require E and F to file a joint petition. If neither waiver nor petition, conditional status will be terminated, (c)(2)(A)(i). F’s refusal to help means that E needs a waiver under one of the subsections of (c)(4). A good faith waiver under (c)(4)(B) requires divorce. Another option is for E to seek a waiver under (c)(4)(A), which requires showing that “extreme hardship would result.” If E has custody of the child, then the relevant hardship would presumably not be E’s, but rather the child’s, given a distant separation from the noncustodial parent. If F has no interest in the child, however, then the hardship claim would be more difficult to sustain, because the child could move abroad with E. On what is sometimes called “de facto deportation” of a U.S. citizen child when the noncitizen parent is deported, see Acosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977). The cases on this issue have overwhelmingly found no bar to deportation simply because it may result in practice in the removal of a young citizen child with her deportable parent. The courts indicate that the parents have to choose what residence arrangements they want for the child, and they note that the child retains all rights of citizenship, including the right eventually to resume residence in the United States, despite the time spent abroad.
3(b) Suppose instead that noncitizen E leaves with the child after 18 months of marriage because F had become angry and moody after losing his job. He frequently spent the evenings berating her, finding fault with her decisions, and occasionally threatening to strike her. What are E’s options?
A waiver under (c)(4)(C) may be available, depending on whether the past behavior means E “was battered or was the subject of extreme cruelty.” The statutory phrasing is somewhat restrictive and in the past tense. A person could show yelling, menacing, and threats in the past, and perhaps also adduce testimony that such actions are likely to result in battery in the future, and yet still might not fit the language of the waiver. In that circumstance, the (c)(4)(B) waiver may be more promising, but then the marriage must already have been terminated. If F has actually beaten E, then E could probably show that she “was battered.” And any threats or harm to the child, if they meet the definition of battery or extreme cruelty, would seem to be sufficient to qualify E for the (c)(4)(C) waiver.
Problem #5 on page 330; (worth 60 points). Noncitizen I marries U.S. citizen J and is admitted as a conditional lawful permanent resident. The conditional basis is removed two years later. Six months later, they divorce. One year after that, I marries K, a noncitizen not admitted to the United States, and files a second preference petition on K’s behalf. What result?
Under INA § 204(a)(2), I must either prove by clear and convincing evidence that the marriage to J was valid—according to the tests set forth in that section—which differ somewhat from those in §§ 245(e) and 216). Otherwise, I must wait five years from the date of her admission before petitioning for K.
Problem #1 at the top of page 559; (worth 60 points). Answer all questions (you can assume that petty larceny is a crime of moral turpitude) Your client, A, qualifies for the family-sponsored first preference, but was convicted of petty larceny seven years ago and sent to prison for a total of three months. Is A inadmissible? What if she had been convicted of two counts of petty larceny? What if the conviction was for grand theft? What if it was for possession of 150 grams of marijuana? If an inadmissibility ground applies, what waivers might be available?
Petty larceny: This is a crime of moral turpitude, so INA § 212(a) (2)(A)(i)(I) applies and would seem at first to make A inadmissible. However, the two exceptions in INA § 212 (2)(A)(ii) need to be considered. A is not inadmissible if she was under 18 at the time the offense was committed, and it was committed (and she was released) more than five years ago (which it was). Alternatively, A is not inadmissible if the maximum penalty did not exceed one year and her sentence did not exceed six months. See INA § 212 (2)(A)(ii)(II). A was sent to prison for three months, but we need to ascertain her sentence. We also need to know what the maximum penalty was. Note that the exceptions provide flat rules; their application is not discretionary.
Two counts: She is presumably inadmissible. With two counts, A cannot benefit from the exceptions in INA § 212 (2)(A)(ii) unless she can successfully argue that two counts could still be “one crime.” She would then be inadmissible for a single crime of moral turpitude under INA § 212 (2)(A)(i)(I) and able to take advantage of the (2)(A)(ii) exceptions. Paragraph (2)(B) probably does not apply, assuming the sentence is under five years.
Grand theft: A is inadmissible for a single crime of moral turpitude under INA § 212 (2)(A)(i)(I). The issue here is whether an exception applies given what is surely a longer maximum or actual sentence. Unless she was under 18 when she committed the offense (and even then, the timing of prison release must be checked for compliance with the five-year time limit), the exception in (2)(A)(ii)(I) does not apply. Grand theft almost surely entails a possible sentence in excess of one year and/or an actual sentence exceeding six months, making the exception in INA § 212(2)(A)(ii)(II) unavailable.
Marijuana: She is inadmissible. The inadmissibility ground in INA § 212 (2)(A)(i)(II) covers even this relatively minor drug offense. The exceptions in (2)(A)(ii) are unavailable, even if A was a juvenile at the time of the crime, because they are exceptions to (2)(A)(i)(I), not to (2)(A)(i)(II). It is also possible, but unlikely without more facts, that (2)(C) for traffickers or (1)(A)(iii) for drug abusers or addicts applies.
Waivers: Because A qualifies for the first family preference, she is potentially eligible for a INA § 212(h)(1)(B) waiver for all but the marijuana conviction. This waiver requires (1) a specified family relationship (as the daughter of a citizen, she qualifies); (2) a finding of extreme hardship to that citizen parent; and (3) a favorable exercise of discretion. The INA § 212(h) waiver would be unavailable for a marijuana conviction involving more than 30 grams. It’s worth pointing out that the 1996 Act barred judicial review of any decision to grant or deny waivers under INA § 212(h) or § 212(i). (The latter waiver deals with inadmissibility grounds.) If A changed her plans and only wanted to come as a nonimmigrant, the § 212(d)(3) waiver would be available, with fewer hurdles than the § 212(h) waiver.
Problem #4 on page 683; (worth 60 points). Evaluate whether the following noncitizens fall under the crime-based deportability grounds. (4) H admitted as a permanent resident eight years ago committed and was convicted of alien smuggling last year.
Alien smuggling is probably not a crime involving moral turpitude; compare Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989) with U.S. v. Raghunandan, 587 F. Supp. 423 (W.D.N.Y. 1984). However, it may be an aggravated felony under § 101(a)(43)(N), making the noncitizen deportable under § 237(a)(2)(A)(iii). Another important point is that under § 237(a)(1)(E), alien smuggling is a deportability ground even without a criminal conviction, if it occurred prior to, at the time of, or within five years after the date of any entry.
Model Answers for Final Exam -Immigration Law & Procedure MLAW 583, Spring 2019
Problem #5 on pages 273-274; answer all part of the question (worth 60 points). Your client, a high school dropout, is the principal shareholder and chief executive officer of a Brazilian software firm with annual gross receipts equivalent to several million dollars. For many years, he has been thinking of establishing sales outlets in several other countries, possibly including the United States. Whatever happens with the business, he wishes to take up permanent residence here. In advising him, what do you need to know about his educational background, and what difference would that information make?
In addressing the issue of the client, one needs to consider the business as well as the client to appropriately answer the question. In this case, the client should be interrogated on issues relating the business to establish the position of the client and the decision they are about to make. In this regard, considering the preferences of the client based on the § 203(b)(1)(C) that describes the first employment as a multinational manager or an executive. Concomitantly, the relevant definition of the job position to be acquired can be checked based on § 101(a)(44). Consequently, the client has held the position of a chief executive officer in Brazil and wants to handle a similar position in the United States and he must have the qualifications for the same. High school graduation is not a mandatory requirement for the position but will play a major role in assuring the authorities that the client has met over half of the immigration requirements as well as the required experience in their field. Additionally, in the case, that first employment-based preference fails to secure a job for him with an advanced degree will be vital in enabling him to secure a second or third employment preference with an appropriate waiver and a labor certification. Moreover, the client can opt for the fifth employment-based preferences that accommodate the immigrants wanting to engage in a commercial enterprise in the US. It is vital to note that this employment preference is awarded to an immigrant that is able to invest $, 1,000,000 and create full employment for about ten people. The client has the capability of investing several million dollars thus making him eligible for the EB5 category that does not attract the labor certification and education level requirements.
Problem #3 on pages 329-330; answer both parts (a) and (b) (worth 60 points). Noncitizen E marries U.S. citizen F and is admitted as an immediate relative.
3(a) One year later a daughter is born. Six months after that, F walks out and refuses to help E in any further immigration proceedings. What are E’s options to remain in the United States as a lawful permanent resident?
A joint petition calls for the cooperation of E and F as prescribed under the INA § 216(c)(1) when there is no petition or waiver then the conditional status will be terminated as per the (c)(2)(A)(i). In the event that F declines to Help E then E can obtain a waiver as described under subsection (c) (4) or a good faith waiver that calls for divorce as described under (c)(4)(B). Additionally, one can seek a waiver by proving extreme hardships as described under (c)(4)(A). The hardship, in this case, will not be for E but rather for the child who has been separated from one of his parents. More so, F shows that he has no interest for the child then the hardship claim cannot be sustained but E can opt to move with the child abroad amounting to de facto deportation. It is vital to not the single parent have the rights to decide on the residence of the child while the child remains with the citizenship rights, in this case, there is flexibility since the child can gain their citizenship even after moving to a different nation and staying for a long period.
3(b) Suppose instead that noncitizen E leaves with the child after 18 months of marriage because F had become angry and moody after losing his job. He frequently spent the evenings berating her, finding fault with her decisions, and occasionally threatening to strike her. What are E’s options?
Under this circumstance, E can obtain a waiver based on the past behavior of extreme cruelty and violence. In the case that there are threats to the peace of E, then the marriage can be terminated. The termination enables E to gain a waiver through (c)(4)(B). Additionally, in the case that E proves that she was beaten and there are threats or harm to the child then E can obtain a waiver as per (c)(4)(C).
Problem #5 on page 330; (worth 60 points). Noncitizen I marries U.S. citizen J and is admitted as a conditional lawful permanent resident. The conditional basis is removed two years later. Six months later, they divorce. One year after that, I marries K, a noncitizen not admitted to the United States, and files a second preference petition on K’s behalf. What result?
The second preferences between I and K can only be filed if I proves that their marriage with J was valid as per the INA § 204(a) (2). On the other hand, the other option is that I and K can wait for five years since the date of I admission to have the second preference petition filed.
Problem #1 at the top of page 559; (worth 60 points). Answer all questions (you can assume that petty larceny is a crime of moral turpitude) Your client, A, qualifies for the family-sponsored first preference, but was convicted of petty larceny seven years ago and sent to prison for a total of three months. Is A inadmissible? What if she had been convicted of two counts of petty larceny? What if the conviction was for grand theft? What if it was for possession of 150 grams of marijuana? If an inadmissibility ground applies, what waivers might be available?
The petty Larceny is regarded as moral turpitude and is inadmissible under INA § 212(a) (2)(A). However, the crime is admissible if the victim was 18years at the time of conviction and was released more than five years ago. Moreover, the crime is admissible if her sentence was below six months and the penalty did not exceed one year as prescribed under (2)(A)(ii)(II).
Furthermore, is she was charged with two counts then it is presumed as inadmissible. Under the INA § 212 (2)(A)(ii) A cannot be excepted unless she is in apposition to proof that the two counts are one crime. In such a case she will be inadmissible for one crime of moral turpitude and can take advantage of the exceptions.
Consequently, for a case of grand theft, A will only be inadmissible for one crime of moral turpitude as described under INA § 212 (2)(A)(i)(I). The exception in this regard is based on the actual sentences or longer maximum. The exception applies if she was under the age of 18 when she committed the offense as described under (2)(A)(ii)(I).
Moreover, in the case of marijuana case, she is inadmissible. There are no exceptions even if she was a juvenile at the time of the offense. The exception can only apply if more facts on drug abusers, addiction and traffickers apply.
Additionally, on the waivers A qualifies due to first family preference but this is limited to marijuana convictions. The waiver only applies when there exists a specified family relationship, the parent goes through extreme hardship and appropriate exercise of discretion as described by 212(h)(1)(B).
Problem #4 on page 683; (worth 60 points). Evaluate whether the following noncitizens fall under the crime-based deportability grounds. (4) H admitted as a permanent resident eight years ago committed and was convicted of alien smuggling last year.
The smuggling of an alien is not a crime under the moral turpitude. However, under the § 101(a)(43)(N), it becomes an aggravated felony that can grant one deportation if they are noncitizens under the § 237(a)(2)(A)(iii). Also, deportation can be effected for alien smuggling even in the absence of a criminal conviction if it occurred before or within the period of entry.
