2002 Immigration Law Final Exam—Krishnan

Question 1 – Recommend Time (1 hour)

Apu is a citizen of India but a legal permanent resident of the United States. On a trip back to India to visit his parents, Apu meets Manjula (also an Indian citizen) at a neighborhood grocery store in New Delhi. They start up a conversation, and soon thereafter begin dating. Apu and Manjula continue a correspondence after Apu heads back to the U.S., but six months later, he returns to India and the two wed. Apu then goes back to the U.S. to continue his employment with the prestigious company 4-M.

First question: On what if any grounds can Manjula come to the U.S. to be with her husband? What would her status be if admitted?

Assume that Manjula is admitted to the U.S. Upon her arrival, she informs Apu that, in fact, she had been married once before in India, also to an Indian citizen, but that they divorced after five years of marriage. Manjula’s first husband currently lives in New Delhi, only a mile from where Manjula lived. From her first marriage, Manjula has a fourteen-year old daughter named Vimi. (Note, Manjula had primary custody of Vimi, but since Manjula’s departure, Vimi has been staying with her father.)

Second question: For the sake of argument, assume that Manjula is admitted to the U.S., are there any grounds on which she may petition for Vimi to come to the U.S. as well? What would Vimi’s status be? Please state the grounds, including citations to any relevant statutes that should be presented to the INS.

For argument’s sake, let us say that Manjula is indeed admitted and ten months later Vimi is admitted:

Third question: Do Manjula and Vimi have unqualified admission to the U.S? In other words, is there any type of probationary period that they must first satisfy, before being granted permanent residence? If so, please explain - if not why not? What role can Apu play here, if any, to help either or both of them attain full-time, legal permanent residence?

Now, after both Manjula and Vimi are admitted, they and Apu seem to live harmoniously together for the next many months. Then, sadly, Manjula and Apu divorce. At the time of the divorce, Vimi has been in the U.S. for twenty months.

Fourth question: May the INS terminate Vimi’s status? Explain all possible outcomes.

Fifth question: Are there any affirmative steps Vimi can take to stay in the U.S., if the INS does not initiate proceedings against her? What will she need to file, for example, and by when?

Sixth question: In terms of public policy and case law doctrine, should one’s legal status in the U.S. terminate if that person attained residence by virtue of a marriage that subsequently ends? Explain all possible arguments.

Question 2 - Recommended Time (1 hour)

Homer is originally from the country of Springfield. He moved to the United States in 1978 when he was 2 years old, as he and his parents fled Springfield after a religious revolution occurred that brought a zealous fundamentalist to power there. He and his parents came to the U.S. illegally, but once they arrived on American soil, they claimed political asylum. Eventually, they were granted asylum, and the family thereafter moved to Minneapolis. In 1990, when Homer was 14, Homer’s parents both died.

After his parents’ death, Homer kept shifting between foster homes till he finally decided to run away and live on his own in an abandoned apartment in Minneapolis. In 1993, when he was 17 and three years before the passage of The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Homer committed an armed robbery of a convenience store. He was found guilty and sentenced to four years in prison. In 1996, IIRIRA passed and became incorporated into the current version of the Immigration and Naturalization Act (INA) – the same Act our class has been referring to all semester.
 
Assume that prior to IIRIRA, the type of crime committed by Homer did not qualify as one of moral turpitude (namely because the pre-IIRIRA provisions categorized crimes of moral turpitude as those where a defendant was sentenced to five years or more in prison.) However, since the passage of IIRIRA and its incorporation into the INA, a crime such as the one committed by Homer qualifies as a crime of violence and as an aggravated felony under the INA.
 
Homer serves his sentence and is released in 1997. In 1998, the INS begins proceedings to have him relocated back to Springfield. Homer implores the INS not to send him back, because his parents were well-known secularists who opposed Springfield’s theocratic government. Homer fears for his personal safety if he is forced to return. 
 
Homer’s case makes its way through the legal process, eventually landing in the federal circuit court of appeals (in 2002) where you are clerking. Your judge would like you to prepare arguments both for and against Homer. Make sure to spot, explain, and analyze all relevant issues, and please cite all relevant statutory provisions. Who ultimately has the stronger case – Homer or the INS? Why?

Outline – Answer Key for Immigration Final 2002

This outline provides an overview of the issues and points that needed to be discussed. If there were points that one mentioned that were not on my grid, but yet were well analyzed and thoughtfully discussed, those were given credit and placed into what I call an “other” category.

Question I:

Subpart 1:

Aspects to consider:

· Apu could naturalize – then bring over Manjula as immediate relative

· What about her coming over on a second preference petition – ramifications, include wait that she might endure

· Needed to discuss timing of marriage – how that plays into how and if she can come over

· Why she can’t come over on a “following to join” petition – 203(d)

· Statutory provisions needed to mention: 203(2)(a)

· 204 could come into play here as well

· also, what about Manjula coming in on one or more of the various non-immigrant visas we went over – which ones, if any, might work – why or why not

Subpart 2:

Aspects to consider:

· Key here would be to mention following to join and providing a discussion of this statutory provision – 203(d)

· What about Vimi’s status as a child – what definition would be used: 101(b)(1)(B) – would need to mention and analyze issue of age that comes up here

· A definition and discussion of stepchild would also need to be made

· Is there a “qualifying relationship” present – how and what does this mean?

· Why would Vimi be an LPR if admitted?

· Some mentioned the second preference category – if this was done, then a discussion of the backlog would have to come into play

· What about Apu or even Manjula naturalizing – then trying to bring Vimi over

· 204 also would need to be cited

Subpart 3:

Aspects to consider:

· Need to discuss here that there is a conditional LPR status given to Manjula and Vimi

· Section 216(b) is important to cite here

· A discussion of IMFA and how it relates to conditional LPR status; particularly the issue of sham marriage

· The fact that Apu and Manjula would jointly file a petition for removing the conditional status

· The filing should take place 90 days beforehand – what does this process entail:

i. perhaps filing an affidavit that no one involved will be a public charge

ii. would need to cite 212(a)(4)

· What role does the two year marriage marker play in the INA

· What role if any would naturalization (by Apu) play in this scenario – this is an affirmative step he could take, and seemingly, it would be very beneficial to them, right?

Subpart 4:

Aspects to consider:

· Here it seems as though Vimi’s status could be terminated.

· This is because the marriage ended less than two years after the daughter’s admission

· 20 months v. 24 months is significant difference

· The important provision here would be 216(b)(1)

· A full discussion of these points would need to be made

· Then one would need to discuss the hardship aspect that Vimi might face if deported – what might be the reasons Vimi would cite in her affidavit

i. strong family ties here in the U.S. would be severed

ii. AG has the discretion to grant such a hardship waiver

iii. Her mother who she had been living with up until the marriage is in the U.S.

· Could she seek to change her status under 245? This would need to be mentioned

Subpart 5:

Aspects to consider:

· If the INS doesn’t come after Vimi, she can petition for removal of the conditions

· Also would need to talk about 245 and the changing of one’s status – why would there be difficulties – see 216 & 245(d)

· And here again, hardship could come into play – an affirmative petition stating the need to stay because of hardship might be persuasive – this is especially what I was looking for

· However, for those that paid particular attention to 216, the key provision here would be 216(d)(2) - stating that the petition “under subsection c(1)(A)” has to be filed during the 90-day period before the 2^nd anniv. of Vimi’s admission for permanent residence

· A close reading of c(1)(A), though, doesn’t mention someone like Vimi filing this petition – rather it talks about the “spouse” needing to file the petition --- thus when Manjula completes the two year period and has the condition remove, wouldn’t Vimi’s condition be removed as well --- at least this is what one should be asking for this point

· Note, 216 was specifically cited on the study sheet as a provision that needed to be considered for this exam

Subpart 6:

Aspects to consider:

· There were many different ways to answer this subpart

· A discussion of IMFA and why it came into being – what did it seek to prevent/promote – sham marriages

· Case law – particularly Bark was important – other cases also that deal with INS’ probing into marriage would be key (e.g, Dabaghian)

· How has SC ruled on these matters – generally, burden has been on INS

· Court not willing to delve too far into the intimate, private relations between couples – intersection really between individual privacy rights and the great deference the courts have shown to the INS in many other areas of immigration law (e.g., plenary power doctrine)

· How does DOMA come into play here – What have courts said about same-sex marriage & its relationship to immigration law

· Issue of whether immigrant marriages should be held to same or higher standard that citizens who marry – can’t issues/problems that arise in citizen marriage also arise in non-citizen marriages

· What about issues of domestic violence – obviously this can occur within a non-citizen marriage – should victims of this crime be treated differently simply because they have are citizens – we talked about this issue in class in detail

· Leads to questions of how open our borders should be – remember Joe Carens argument – what about the policy readings from earlier in the semester – this could be relevant as well

· Ultimately, I was looking for students to provide both sides to this argument as well as to offer a normative position

Question II:

There are several different ways to go about answer this question. Here is just one method (in outline form) –

Aspect to consider:

· Is there an ex post facto argument that Homer has?

1. Not really, given courts’ various rulings that we covered (would need to included these) that deportation and laws relating to it are civil in nature rather than criminal

· Homer, though, may try to argue for protection against refoulement

1. What role does Article 33 play here?

2. Could argue to the A.G. that because of the UN Protocol that exists on this issue he should be allowed to stay in U.S.

3. 241(b)(3) would be important to include in the discussion

· Persecution issue that Homer may argue

1. Well-founded fear argument

2. Claim for asylum – definition needed: 101(a)(42) / also definition for refugee important here

3. Homer has to show that he is unwilling or unable to return; and that he cannot put his faith in his home gov’t to protect his interests

4. 5 categories one has to fit into to make persecution argument

a. On account of Race

b. On account of Religion

c. On account of Nationality

d. On account of Membership in Particular Social Group

e. On account of Political Opinion

--which one does Homer fit into – more than one? How and why

--how does Acosta, Fatin, In Re H, Matter of Chang, Fisher, and the rest of the persecution cases we read come into play here?

--is being the son of secularists part of a “particular social group”

--is past persecution enough

--is a waiver application possible – why or why not

· Several arguments INS could make

1. Homer has committed crime of moral turpitude

a. would need to define three views of this concept

b. is there a statute of limitations on such crimes as the one Homer has committed, at least for INA purposes?

2. Conditions are not the same when Homer left – remember

importance of EVIDENCE – we talked about how courts have really

pressed petitioners on this issue

- How does 208 fit into this?

- How does the plenary power doctrine come into play here too?

-How does Homer’s EWI come into play – does it?

-Other issues and aspects important for discussion:

a. What IIRIRA did regarding 212 and 237 and how this applies to Homer – particularly 237(a)(2)

b. Do deportation or inadmissibility rules govern? – is this relevant, why or why not?

c. Why didn’t Homer naturalize after all these years – there seems to be an obvious reason, but important to state

d. Has Homer become a public charge – how and why is this important

e. Is the timing of the crime, i.e 15 years after Homer entered an issue – how can this be reconciled with INA’s 5 year provision

f. How doe the rules and holdings from Fong, Chae Chan, Mandel, Wong-Wing, and Harisiades, Linnas, and Batista come into play?

--Also, there are larger, policy-oriented issues surrounding the whole debate of political asylum and refugees – we talked about how the standards vary depending on who an asylee or refugee is and from where she is coming – mentioning these points and placing the situation of Homer into the larger context would merit discussion as well.