The regulation of immigration, naturalization, and noncitizens falls under the jurisdiction of the United States, though the Commerce,[1] Naturalization,[2] Migration[3] and War Power[4] clauses of the United States Constitution, as well as the United States’ inherent power as a sovereign nation.[5]  While Congress has the power to pass laws that regulate immigration, the executive powers of enforcement of those laws have been given to the Department of State (for issuing visas), the Department of Homeland Security (benefits and enforcement), and the Department of Justice (administrative courts and interpretation of laws).

 

                All immigration court judges must follow the precedent decisions issued by the Board of Immigration Appeals (“BIA”)[6] unless there is a United States Supreme Court or federal circuit court decision of the circuit in which they sit that has announced a different rule.[7]  The physical location of the immigration court in which the Department of Homeland Security files a Notice to Appear determines which circuit court’s law will control.[8]  Decisions of the BIA may, with limitations, be reviewed upon appeal to the circuit court in which the removal proceedings were conducted.[9]  If a circuit court directly overrules a decision of the BIA (rather than merely announcing a different rule in a different case involving the same issue), the BIA decision will continue to control nationwide outside that circuit.[10]  Neither the immigration courts, nor the BIA, are required to follow the decisions of a federal district court as to immigration issues.[11]

 

                State law becomes important when a noncitizen is facing removal on the basis of a state criminal conviction.[12]  It is state law that defines the elements of the crime of conviction.[13]  These elements, and the state case law defining those elements, must be examined and followed by immigration and federal courts in determining whether the crime triggers a ground of removal.[14] 

 

                Foreign convictions can sometimes trigger immigration consequences, although special rules may apply.  See § 7.25, supra. 

 

                Local, tribal, and military law may also become important where a ground of removal specifically mentions (or fails to mention) that a violation of a local, tribal, or military law will trigger a given ground of removal.[15]

 

[1] Art. I, § 8, Cl. 3.  See, e.g., Passenger Cases, 48 U.S. (7 How.) 283 (1849).

[2] Art. I, § 8, Cl. 4.  See, e.g., Hoang v. Comfort, 282 F.3d 1247, 1257 (10th Cir. 2002).

[3] Art. I, § 9, Cl. 1.  See, e.g., People v. Compagnie Generale Transatlantique, 107 U.S. (17 Otto) 59, 62 (1883).

[4] Art. 1, § 8, Cl. 11.  See, e.g., 50 U.S.C. § 21.

[5] See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“every sovereign nation has the power . . . to forbid the entrance of foreigners . . . or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”).

[6] Most of which can be found here: http://www.usdoj.gov/eoir/vll/libindex.html.

[7] Matter of ELH, 23 I. & N. Dec. 814 (BIA 2005) (holding that a BIA precedent decision remains controlling unless the Attorney General, Congress, or a federal court modifies or overrules a decision).  See also 8 C.F.R. § 1003.1(d)(7).

[8] INA § 242(b)(2), 8 U.S.C. § 1252(b)(2).  See Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (immigration judges must apply the law of the circuit in which they sit; noncitizens in removal proceedings have no legal right to have removal proceedings commenced in a particular place, or to have the laws of a particular federal circuit applied to them). See also Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993).

[9] See § 15.37, infra.

[10] Matter of Anselmo, 20 I. & N. Dec. 25 (BIA 1989).  See, e.g., Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), specifically overruled within the Fourth Circuit by Aremu v. DHS, 450 F.3d 578 (4th Cir. June 19, 2006).

[11] Matter of KS, 20 I. & N. Dec. 715 (BIA 1993) (Board is not bound to follow published decisions of United States district courts even in cases arising within the same district).

[12] The Texas House of Representatives issued a report on the roles of states in immigration, available at: http://www.hro.house.state.tx.us/focus/immigration79-12.pdf (last visited 2/8/07).

[13] See, e.g., United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006) (reviewing court is bound by state court interpretation of statute defining state criminal offense in performing categorical analysis of whether state conviction falls within federal “crime of violence” definition under USSG § 2L1.2(b)(1)(A)(ii)), citing Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor categorical approach for defining a crime of violence).

[14] See § 16.6, infra.

[15] See § 7.26, supra.

Fourth Circuit

REMOVAL PROCEEDINGS " CONVICTION " NO COLLATERAL ATTACK
Mondragon v. Holder, 706 F.3d 535, (4th Cir. Jan. 31, 2013) (respondent cannot challenge in removal proceedings the constitutional validity of a conviction on which those proceedings are based: Indeed, the same reasoning has also led courts to apply Custis to the immigration context. See, e.g., Drakes v. INS, 330 F.3d 600, 604 (3d Cir. 2003) (There is no meaningful difference between a collateral attack on an expired state conviction underlying removal proceedings and a collateral attack on an expired state criminal conviction underlying an enhanced sentence); Taylor v. United States, 396 F.3d 1322, 1330 (11th Cir.2005) (same).).

Fifth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " BIAS IMPROPER STANDARD OF REVIEW IS A REVIEWABLE LEGAL ERROR
Esperanza Alvarado de Rodriguez v. Holder, 585 F.3d 227 (5th Cir. Oct. 9, 2009) (whether the BIA applied an improper standard of review is a question of law, which the court of appeal has jurisdiction to consider: here, the BIA improperly reviewed the IJ's factual findings de novo, when the BIA, while indicating that it did not find any clear error in the immigration judge's factual findings or in its credibility determinations, nonetheless all but ignored significant testimony and documentary evidence that the alien presented as proof of her good faith in entering into marriage).

Ninth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - INEFFECTIVE COUNSEL DOES NOT VIOLATE DUE PROCESS UNLESS IT RENDERS THE REMOVAL HEARING ITSELF FUNDAMENTALLY UNFAIR
Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. Oct. 24, 2008) (counsels ineffective assistance in preparing and filing visa petition was not a violation of due process where petitioner could not show a deficiency relating to fundamental fairness of removal hearing itself).

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - INEFFECTIVE COUNSEL DOES NOT VIOLATE DUE PROCESS UNLESS IT RENDERS THE REMOVAL HEARING ITSELF FUNDAMENTALLY UNFAIR
Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. Oct. 24, 2008) (counsels ineffective assistance in preparing and filing visa petition was not a violation of due process where petitioner could not show a deficiency relating to fundamental fairness of removal hearing itself).

Other

RESEARCH - OLDER VERSIONS OF INA
The "office of the law revision counsel" posts previous versions of the INA, as written, back to 1/2/1991. http://uscode.house.gov/search/prevcode.shtml