Criminal Defense of Immigrants



 
 

§ 15.3 (A)

 
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(A)  Immigration Status.  A person’s “immigration status” is the legal category into which a person falls under the federal immigration laws.  Some of the more common of these (often overlapping) categories are:

 

Alien:  Any person who is not a Citizen or National of the United States.[11]  This book prefers to use the term noncitizen.

Arriving Alien:  Any noncitizen looking to be admitted to the United States, seeking transit through the United States, or interdicted in international waters and brought to the United States.  The definition of “arriving alien” depends upon the definitions of “admission” and “applicant for admission.”[12]  A lawful permanent resident shall not be regarded as seeking admission unless one or more of six conditions is met.[13]  Parolees are considered to be arriving aliens, no matter how long they are in the United States.[14]

Asylee:  A person who has been granted asylum after coming to the United States by some means.[15]

Citizen:  A person who, through birth or naturalization, has the right to live in the United States permanently without being subject to immigration law.[16]

Conditional Lawful Permanent Resident:  An immigrant granted lawful permanent resident status through marriage to a United States Citizen or lawful permanent resident, who has not yet had the two-year conditional status removed.[17]  The condition is imposed for the purpose of preventing marriage fraud.  While in most respects a conditional permanent resident is treated the same as a lawful permanent resident, this status may be revoked (generally) upon divorce within the 2-year period, or a determination that the marriage was only for the purpose of becoming a lawful permanent resident.  Certain exceptions exist for persons subject to domestic abuse.[18]

Deportable:  A noncitizen who has been admitted into the United States and is subject to one or more grounds of deportation.[19]

Entered [or Present] Without Inspection (“EWI” or “PWI”): A noncitizen who has entered the United States without having been lawfully admitted (a.k.a., “illegal alien”).

Inadmissible: A noncitizen subject to one or more grounds of inadmissibility.[20]  Another term used is “excludable.”

Immigrant:  A noncitizen who has been lawfully admitted to the United States with the intent to reside in the United States permanently.[21]

Lawful Permanent Resident (“LPR”):  An immigrant who has been granted the right to reside in the United States permanently, subject to the immigration law.[22]  This status is evidenced by a Form I-551 (“green card”).

National of the United States: Certain persons born in outlying territories of the United States, and not subject to removal or other adverse immigration consequences.[23]

Noncitizen: Anyone who is not a Citizen or National of the United States.

Non-Immigrant:  A noncitizen lawfully admitted to the United States on a temporary basis (e.g., as a visitor, student or employee).[24]

Overstay: A non-immigrant whose visa has expired, or who has had their visa revoked after violating its conditions.

Parolee:  A noncitizen the DHS has allowed to be physically, but not legally present in the United States.[25]

Refugee:  (a) A person eligible to receive asylum;[26] (b) A person granted asylum while outside the United States.[27]

Removable:  A noncitizen who falls under any of the grounds of inadmissibility or deportability.[28]

Respondent:  A noncitizen party in immigration proceedings.[29]

Temporary Protected Status:  A noncitizen temporarily protected from removal from the United States to designated countries suffering from natural disasters or internal political strife.[30]

Undocumented:  A noncitizen present within the United States in violation of law due to (a) entry without admission, or (b) expiration or violation of the conditions of the visa with which s/he was allowed to enter the United States.


[11] INA § 101(a)(3), 8 U.S.C. § 1101(a)(3).

[12] INA § § 101(a)(4), (a)(13), 8 U.S.C. § § 1101(a)(4), (a)(13).

[13] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C); see 8 C.F.R. § 1001.1(9).

[14] 8 C.F.R. § 1001.1(q).

[15] INA § 208, 8 U.S.C. § 1158.  See § 24.18, infra.

[16] See § 15.4, infra.

[17] See INA § 216, 8 U.S.C. § 1186a.

[18] See § 24.26, infra.

[19] See Chapter 17, infra.

[20] See Chapter 18, infra.

[21] See INA § 101(a)(15), 8 U.S.C. § 1101(a)(15).  Technically, the definition of “immigrant” under the INA includes those not lawfully admitted to the United States.

[22] INA § 101(a)(20), 8 U.S.C. § 1101(a)(20); 8 C.F.R. § 1001.1(p).

[23] See § 15.4, infra.

[24] INA § 101(a)(15), 8 U.S.C. § 1101(a)(15).

[25] See § 15.15, infra.

[26] INA § 101(a)(42); 8 U.S.C. § 1101(a)(42).

[27] See INA § 207, 8 U.S.C. § 1157.

[28] INA § 240(e)(2), 8 U.S.C. § 1229a(e)(2).

[29] 8 C.F.R. § 1001.1(r).

[30] See § 24.25, infra.

Updates

 

Ninth Circuit

REMOVAL PROCEEDINGS " TERRITORIAL JURISDICTION " MARIANA ISLANDS
Mtoched v. Lynch, ___ F.3d ___, 2015 WL 2445063 (9th Cir. May 22, 2015) (United States immigration laws may be applied and enforced within CNMI to noncitizens who entered that territory, committed the crime, and suffered the conviction upon which the removal order is based prior to the extension of United States immigration laws to the Commonwealth).

Other

OVERVIEW - IMMIGRATION PROCEEDINGS - VISA WAIVER PROGRAM
DHS Final Rule: Designation of Malta for the Visa Waiver Program "This rule adds Malta to the list of countries authorized to participate in the Visa Waiver Program. DATES: This final rule is effective on December 30, 2008." Federal Register / Vol. 73, No. 250 / Tuesday, December 30, 2008.

 

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