Legality of Cannabis by U.S. Jurisdiction

History

Further information: Afghanistan–United States relations

The earliest Afghan immigrant in deportation proceedings has been reported in 1945. The immigration officials suspended (cancelled) his deportation, which allowed him to remain in the United States with his American family.[1] Another Afghan immigrant was placed in deportation proceedings in the early 1950s.[2]

Afghans escaping from totalitarianism and genocide

Further information: Saur Revolution and Soviet–Afghan War

Afghanistan began to experience a great turmoil in the 1970s,[3][4][5][6] which resulted in a mass exodus of its citizens. These people were first admitted to neighboring Pakistan and Iran as refugees escaping from: (1) totalitarianism and genocide orchestrated by the communist People's Democratic Party of Afghanistan (PDPA); and (2) political repression of the mujahideen, who were engaged in a guerrilla warfare with the PDPA.[7][8][9][10] Pakistan and Iran do not provide citizenship or permanent residency to Afghan refugees.[11][12] In 1980, Congress and the Carter administration enacted the Refugee Act, which approved 50,000 international refugees to be firmly resettled in the United States each year.[13][14] Before enacting the Refugee Act, Congress was aware that these refugees are ordinary people prone to committing a crime just like Americans commit a crime in the United States.[15][16][17][18][19]

Firm resettlement of Afghan immigrants in the United States

Further information: Afghan diaspora and Afghan refugees
Northern Virginia is one of three places in the United States where large number of Afghan refugees were firmly resettled since around 1980.

Each year (from 1980 onward) groups of Afghan refugee families lawfully entered the United States.[20] These families were issued by the U.S. Department of State special travel documents. At least one such family entered with fraudulent documents and applied for asylum in the United States.[21][18] After residing for at least one year, the then Immigration and Naturalization Service (INS) adjusted their status from "immigrants" to that of lawful permanent residents (green card holders).[22][23][24][25][26] This process statutorily protected them for lifetime against refoulment (forceful deportation).[27][28][29][30][7][8][31]

These immigrant families were firmly resettled all across the United States but mainly in and around New York City followed by in California, Virginia, Texas, Georgia, Pennsylvania, Florida and elsewhere. In 1982, the U.S. Supreme Court reiterated that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly."[32] That opinion was issued after Congress and the Reagan administration began bringing stateless refugees from various countries around the world to be firmly resettled in the United States.[14]

Congress provides statutory relief to Afghan-Americans

Further information: Afghan Americans

"The term 'alien' means any person not a citizen or national of the United States."[33][34] A refugee that is admitted under 8 U.S.C. § 1157 soon becomes an "immigrant" and later a "special immigrant" after receiving a green card.[22] For INA purposes, the "immigrant" status is conferred for life and cannot ever be taken away under any circumstances.[35] For this reason Congress uses the term "any immigrant" in section 1182(h)(1)(A), which manifestly includes every person that was originally admitted under section 1157 (regardless if such person later becoming a "special immigrant" or losing his or her "special immigrant" status as a result of an INA violation).[30] Any such immigrant that is not inadmissible to the United States is not deportable from the United States.[36] In this regard, section 1157 explicitly states the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking admission to the United States under this subsection, and the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.[27][37][34]

Section 1159 states the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.[38][37][34]

Section 1181 states the following:

The provisions of subsection (a) shall not apply to an alien whom the Attorney General admits to the United States under section 1157 of this title.[29][37]

And section 1231(b)(3) instructs that:

the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.[39][34]

Congress clearly treated stateless refugees (i.e., established victims of persecution who have absolutely no safe country) differently than all other aliens (who do have a safe country and are not victims of persecution).[13][9] There is nothing ambiguous in the plain language of sections 1157(c)(3), 1159(c), 1181(c), 1182(h) and 1231(b)(3).[28][30]

The penultimate provision of section 1182(h), where it repeatedly mentions the phrase "under this subsection", does not apply to any Afghan-American requesting relief under section 1157(c)(3), 1158(c)(3), 1159(c), 1181(c), 1229b(a), 1231(b)(3) or the CAT.[40] The Afghan-Americans that were admitted as stateless refugees in the 1980s are not only legal immigrants but still stateless refugees under the INA and international law.[22][13][14][9] This means that any such individual who has been convicted of any offense mentioned under section 1101(a)(43) is not (and has never been) precluded from relief pursuant to sections 1157(c)(3), 1158(c)(3), 1159(c), 1181(c), 1182(h) and 1231(b)(3), including under the CAT.[28][29][30][39] It has long been understood that whenever "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."[41]

The above provisions are in harmony with each other and the overall law of the United States, including with international law. Secondly, providing relief under section 1157(c)(3), 1159(c), 1181(c), 1182(h), 1229b(a), 1231(b)(3), 1255(a) or the CAT is not discretionary but mandatory if all requirements are fulfilled,[42] and the above provisions all involve legal claims (i.e., constitutional claims or questions of law).[43] As such, federal courts and agencies are fully empowered to review these legal claims at any time,[44][45][46][47] especially in a case involving exceptional circumstances.[48][49]

Expansion of the definition of "national but not citizen of the United States"

Further information: Americans and United States nationality law
A special U.S. passport that is issued to a non-citizen national of the United States.

In 1986, less than a year before the CAT became effective, Congress expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to section 1408, which states that:

the following shall be nationals, but not citizens, of the United States at birth: .... (4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years—(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and (B) at least five years of which were after attaining the age of fourteen years.[50][37]

The natural reading of section 1408(4) demonstrates that it was not exclusively written for the 55,000 Samoan Americans but also for those who statutorily and manifestly qualify as "nationals but not citizens of the United States."[50][51] This means any Afghan-American can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of sections 1408(4) and 1436, and thereafter claim to being a "national but not a citizen of the United States."[52]

If an individual demonstrates by "clear and convincing evidence" that he or she has continuously resided in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability,[36][53] such individual cannot be treated as an alien. "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."[54][55][56][57][58][59][60][61] The above text "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant."[62]

Introduction of the term "aggravated felony"

Further information: Aggravated felony

In 1988, Congress introduced the term "aggravated felony" by defining it under section 1101(a).[63] Its definition was amended over the years. It basically refers to a crime for which imprisonment of one year or longer may be imposed under law.[64] As of September 30, 1996, an "aggravated felony" only applies to convictions "for which the term of imprisonment was completed within the previous 15 years."[65][62]

After those 15 years successfully pass, a lawful permanent resident (LPR) automatically becomes eligible for both cancellation of removal and a waiver of inadmissibility. He or she may (at any time) request these immigration benefits depending on whichever is more applicable or easier to obtain.[44][66] It makes no difference if the aggravated felony was committed in the United States, Canada, Afghanistan, Pakistan, Iran, Germany, the United Kingdom, Australia, American Samoa, or in any other country or place in the world.[65][62]

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Further information: Cancellation of removal and waiver of inadmissibility (United States)
Sample of a permanent resident card (green card), which lawfully permits its holder to live and work for lifetime in the United States similar to that of all other Americans.

In February 1995, U.S. President Bill Clinton issued a presidential directive in which he expressly warned the Attorney General and others by stating the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General ... and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment....[60]

On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) took effect,[67] which is particularly aimed at combating illegal immigration to the United States. But despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting admitted refugees (i.e., potential Americans).[24][23][25][68][26] These legal immigrants have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc. They own homes, businesses, cars and other properties in the United States under their names. Such people statutorily qualify as "nationals of the United States" after continuously residing in the United States for at least 10 years without committing (in those years) any offense that triggers removability.[50] This appears to be the reason why the permanent resident card (green card) is valid for 10 years. It was expected that all Afghan-Americans would obtain U.S. citizenship within 10 years from the date of their first lawful entry,[20] but if that was unachievable then they would statutorily become "nationals but not citizens of the United States" after the successful elapsing of such 10 years.[62] Anything to the contrary will lead to "deprivation of rights under color of law," which is a federal crime that entails capital punishment for the perpetrator(s).[55][56][57][58][59][54][69][61][70]

Child Citizenship Act of 2000

Further information: Child Citizenship Act of 2000

Under the Child Citizenship Act of 2000 (CCA), qualified applicants obtain automatic citizenship or nationality from at least one U.S. citizen parent.[71][62][72] The CCA states that automatic nationality applies to parents and their biological children presently and retrospectively or retroactively.[71][37] If an applicant for such citizenship or nationality is in any removal proceeding, he or she must have that proceeding legally terminated before any application for certificate of citizenship or nationality is submitted.[73]

At least two Afghan-Americans in removal proceedings claimed United States nationality under the CCA.[23][24] To frustrate the last one, the Third Circuit cited against him Morgan v. Attorney General, 432 F.3d 226, 229-30 (3d Cir. 2005). But Morgan was entirely about "legal separation" of the petitioner's Jamaican LPR father and naturalized mother. Id. at p.30-31. The three-judge panel in Morgan obviously erred by applying section 1432(a) (1984) instead of applying section 1433(a) (1984).[74] Overlooking the CCA's effective-date provision is a more serious error because that is where the congressionally-mandated nunc pro tunc relief sits.[75] The part about the CCA's retroactive effect at footnote 1 in Morgan is ambiguous and based on obiter dicta.[76] If the panel was sure that the amendments in the CCA did not apply to all children-turned-adults, it would have clearly stated that instead of inserting these trickery words, "like petitioner," because that insertion could refer to every child admitted as an LPR, every Jamaican, every black person, every female, every person convicted of an aggravated felony, every person convicted of a drug-related crime, every person in removal proceedings, etc. These two words were probably added by mistake or for the purpose of depriving large number of people of U.S. citizenship,[77][54][55][56] particularly Samoan Americans because this group obviously has been deprived of such important federal benefit since 1952.[78] Under section 1436,[50] all adults from American Samoa have always been permitted to apply for U.S. citizenship as soon as they move to the United States but their children had to wait up to 18 years for the same federal benefit before the CCA's effective date (February 27, 2001). This is one of the reasons why Congress mandated a present and retrospective or retroactive application of the CCA.[79][80] For the reasons provided here, the retrospective or retroactive application of the CCA should be treated as unsettled until the Supreme Court or a court of appeals properly addresses this important United States nationality issue.[81]

Afghan-Americans in removal proceedings are legal immigrants,[60][22] but decades later the plainly incompetent immigration officials turned these Americans into stateless refugees.[82][83] This makes them nothing but a distinct class of persecuted Americans.[9] The ones denied U.S. citizenship are statutorily permitted to reside for lifetime in the United States with their American families.[28][29][30]

Challenging an order of removal or deportation

Further information: Federal Rules of Appellate Procedure and Supreme Court of the United States
Any person may take his or her deportation-related case to the U.S. Supreme Court

"Only 'aliens' are subject to removal under the INA."[84] Inadmissible aliens and deportable aliens basically form a single group of people.[36] It includes the INA violators among the 75 million foreign nationals who are admitted each year as visitors or guests,[20][85][86] the 12 million or so illegal aliens,[87] and the INA violators among the 400,000 foreign nationals who possess the temporary protected status (TPS).[20]

An LPR can either be an alien or a national of the United States (American),[33] which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder.[88][52][50][53] An LPR can become an aggravated felon under the INA but only if his or her "term of imprisonment was completed within the previous 15 years."[65][62] Such person cannot:

An order of removal or deportation may be investigated and corrected at any time.[44][61][48][37] Habeas petitions that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005 can be reopened under Rule 60 of the Federal Rules of Civil Procedure.[46][47][45] The review of the order does not require the alien (or the American) to remain in the United States. It can be requested from anywhere in the world via mail (e.g., DHL, FedEx, UPS, etc.) and/or electronic court filing (ECF),[96] and the case can be filed in any federal court the alien (or the American) finds appropriate.[97] Every United States nationality claim, CAT or asylum claim, miscarriage of justice claim, etc., is reviewed under section 1252 and 28 U.S.C. §§ 2341-2351 et seq.[98][88][46][58][48][49]

Every person in removal proceedings has a federal statutory right to request declaratory judgment, injunctive relief and/or damages.[61][48] Such relief applies to people whether they are inside or outside the United States.[49][52] Under 8 CFR 1239.2, any Immigration Judge may at any time terminate the removal proceedings of any person who: (1) turns out to be a national of the United States; or (2) one that is simply not removable under the INA.[89][36] In this regard, Congress has long warned every government official and judicial officer by expressly stating the following:

'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens,' shall be subject to specified criminal penalties.[99][55][58][59][60][54]

Reasons for forceful deportation from the United States to Afghanistan

Further information: Deportation of Americans from the United States

About Afghan-Americans, Cato Institute stated:

Afghan immigrants aged 18–54 in the United States were incarcerated at a rate of 127 per 100,000 Afghan immigrants in 2017. By comparison, native‐​born Americans in the same age range were incarcerated at a rate of 1,477 per 100,000 native‐​born Americans. In other words, native‐​born Americans were about 11.6 times as likely to be incarcerated as Afghan immigrants. Afghans don’t pose much of a serious criminal threat in the United States.[100]

— Alex Nowrasteh, August 2021

In spite of that and being eligible for relief under sections 1157(c)(3), 1158(c)(3), 1159(c), 1181(c), 1182(h), 1229b, 1231(b)(3)(A), etc.,[39][30][29][28][27] and Afghanistan and the United States having absolutely no repatriation agreement,[101] approximately 378 people from the United States have been expelled, returned or extradited to Afghanistan between November 2002 and January 2016. At least 225 had no criminal conviction.[102] The interesting part is that the forceful deportation of Afghan-Americans was openly occurring while a major international war was being fought in Afghanistan. Unlike other countries, the whole world knows that Afghan-Americans clearly face persecution and torture in Afghanistan.[103][104][105][106][107][108]

According to Fox News, "ICE deported more than 200 people from the U.S. to Afghanistan" in the last decade.[109] These people were Afghan refugees and asylum seekers, including Afghan-Americans who have been convicted of a common crime in the United States. Some may have been wrongfully deported.[82][70][110][111][69] "Recent data suggests that in 2010 well over 4,000 U.S. citizens were detained or deported as aliens[.]"[112][113]

One appears to have been convicted of homicide, another of negligent homicide (involuntary manslaughter or vehicular homicide), and the remaining were convicted of assault and other common crimes that are committed in the United States, including driving under the influence (DUI), shoplifting, and traffic offenses.[102] At least one has been charged with a weapon violation pursuant to 8 U.S.C. § 1227(a)(2)(C),[24] but this INA charge plainly does not apply to any admitted refugee (immigrant) who later becomes a green card recipient pursuant to section 1159(a)(2).[114][20][18] Congress had clarified this in 1996 and in 2000 became a settled issue,[115] which has since been binding on all immigration judges and DHS officers.[116]

See also

References

This article in most part is based on law of the United States, including statutory and published case law.

  1. ^ "In the Matter of K". Board of Immigration Appeals. Casetext.com. May 26, 1945.
  2. ^ "Khan v. Barber, 253 F.2d 547". Ninth Circuit. Harvard Law School. March 11, 1958. p. 548.
  3. ^ "U.S.: Afghan Jews Keep Traditions Alive Far From Home". Nikola Krastev. Radio Free Europe/Radio Liberty (RFE/RL). June 19, 2007. Retrieved 2018-10-31.
  4. ^ Bowersox, Gary W. (2004). The Gem Hunter: The Adventures of an American in Afghanistan. United States: GeoVision, Inc. pp. 100–03. ISBN 978-0-9747-3231-2. Retrieved 2018-10-25.
  5. ^ "Afghan-American Family Finds Ramadan Good Opportunity for Reflection". Voice of America. September 9, 2010. Retrieved 2018-10-04.
  6. ^ "Little Kabul -- An Afghan American Community in California". dingopanga. October 21, 2011. Retrieved 2018-10-04.
  7. ^ a b "Matter of Izatula, 20 I&N Dec. 149" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. February 6, 1990. p. 154. Afghanistan is a totalitarian state under the control of the [People's Democratic Party of Afghanistan], which is kept in power by the Soviet Union.
  8. ^ a b "Matter of B-, 21 I&N Dec. 66" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 19, 1995. p. 72. We further find, however, that the past persecution suffered by the applicant was so severe that his asylum application should be granted notwithstanding the change of circumstances.
  9. ^ a b c d "Mashiri v. Ashcroft, 383 F.3d 1112". Ninth Circuit. Harvard Law School. November 2, 2004. p. 1120. Persecution may be emotional or psychological, as well as physical.
  10. ^ Westermann, Edward B. (1999). "The Limits of Soviet Airpower: The Failure of Military Coercion in Afghanistan, 1979-89". Journal of Conflict Studies. 19 (2). Retrieved 2018-10-20.
  11. ^ "No country for old Afghans: 'Post-1951 immigrants to be considered illegal'". The Express Tribune. November 20, 2013. Retrieved 2021-09-27.
  12. ^ "Iran: Afghan Refugees and Migrants Face Abuse". Human Rights Watch. April 2, 2015. Retrieved 2021-09-25.
  13. ^ a b c 8 U.S.C. § 1101(a)(42) (definition of "refugee")
    • "Matter of B-R-, 26 I&N Dec. 119" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 3, 2013. p. 121. The circumstance of dual nationality is not specifically addressed in section 101(a)(42) of the Act. The legislative history of the provision affords some guidance, however.
  14. ^ a b c "Hanna v. Holder, 740 F.3d 379". Sixth Circuit. Harvard Law School. January 17, 2014. p. 393-97. (providing information on "firm resettlement" for immigration purposes)
  15. ^ "Grand Jury Returns Indictments Charging 2 Afghan Evacuees with Crimes While at Fort McCoy & Wisconsin Residents with Gun & Drug Crimes". U.S. Dept. of Justice. September 22, 2021. Retrieved 2021-09-25.
  16. ^ "Two Afghan refugees charged with crimes while at Fort McCoy". WKBT-DT. September 22, 2021. Retrieved 2021-09-26.
  17. ^ "Two Afghan refugees at Fort McCoy facing charges of sex crimes against a minor and domestic abuse". Fox News. September 22, 2021. Retrieved 2021-09-26.
  18. ^ a b c "Matter of D-X- & Y-Z-, 25 I&N Dec. 664" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. January 6, 2012. p. 666. It is well settled that an alien is not faulted for using fraudulent documents to escape persecution and seek asylum in the United States.
  19. ^ "United States v. Maravilla, 907 F.2d 216". First Circuit. Harvard Law School. June 28, 1990. p. 217. A jury has found that, on September 10, 1982, two United States Customs officers kidnapped a Dominican money courier as he entered the United States, murdered him, and stole about $700,000 that the courier intended to deposit in a Puerto Rican bank that afternoon.
  20. ^ a b c d e "Posos-Sanchez v. Garland, ___ F.4th ___, No. 17-72002". Ninth Circuit. Casetext.com. July 7, 2021. p. 11. The INA generally defines the words 'admission' and 'admitted' as 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'
    • "Matter of D-K-, 25 I&N Dec. 761" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 12, 2012. p. 766. With regard to refugees, the language of both the Act and the regulations states that they are 'admitted' to the United States.
  21. ^ König, Karin (1989). Detained, Denied, Deported: Asylum Seekers in the United States. Human Rights Watch. p. 45. ISBN 9780929692227.
  22. ^ a b c d
    • 8 U.S.C. § 1101(a)(15) ("The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens....")
    • 8 U.S.C. § 1101(a)(20) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.")
    • 8 U.S.C. § 1101(a)(27) ("The term 'special immigrant' means—(A) an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad....")
  23. ^ a b c "Ali v. Ashcroft, 395 F.3d 722". Seventh Circuit. Harvard Law School. January 11, 2005. p. 724.
  24. ^ a b c d
    • "Ahmadi v. Attorney General, 842 F. App'x 777". Third Circuit. Casetext.com. April 7, 2021.
    • Ahmadi v. Attorney General, No. 19-2713 (audio (2:20—3:04)). Third Circuit. July 9, 2020. Your Honors, this is a case that shocks the conscience. It is about an illegal deportation of a non-violent person from the State of Pennsylvania who was: 1) admitted to this country as an 11-year-old refugee from a totalitarian state pursuant to 8 U.S.C. § 1157(c)(2)(A); 2) became a lawful permanent resident, LPR, of the United States pursuant to § 1159(a)(2); 3) rightfully and successfully became a recipient of the United Nations Convention Against Torture, CAT, relief on September 26, 2000; and 4) was naturalized or admitted as a national of the United States under the Child Citizenship Act, CCA, of 2000.
    • "Ahmadi v. Attorney General, 659 F. App'x 72". Third Circuit. Harvard Law School. October 27, 2016. p. 74. He maintains that he once more showed the BIA that he was entitled to CAT protection, a waiver of inadmissibility, and naturalization.
    • "Ahmadi v. Ashcroft, et al., No. 03-249". U.S. District Court for the Eastern District of Pennsylvania. PACER (law). February 19, 2003. p. 1. Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident, retroactive to September 30, 1982.
  25. ^ a b "Popal v. Gonzales, 416 F.3d 249". Third Circuit. Harvard Law School. July 29, 2005. p. 251.
  26. ^ a b "Jaghoori v. Holder, 772 F.3d 764". Fourth Circuit. Harvard Law School. November 18, 2014. p. 768.
  27. ^ a b c d e f 8 U.S.C. § 1157(c)(3) (emphasis added)
  28. ^ a b c d e f g
    • "Matter of C-A-S-D-, 27 I&N Dec. 692". Board of Immigration Appeals. U.S. Dept. of Justice. November 1, 2019. p. 694. Section 209(c) of the Act provides that the Attorney General may waive certain criminal grounds of inadmissibility under section 212(a) of the Act 'with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.'
    • "Matter of H-N-, 22 I&N Dec. 1039" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. October 13, 1999. p. 1040. Pursuant to section 209 of the Act, an alien admitted into the United States as a refugee under section 207 of the Act, 8 U.S.C. § 1157 (1994 & Supp. II 1996), may have his or her status adjusted to that of a lawful permanent resident. In making such a determination, it is clear from the statute that the Attorney General has the power to grant a waiver of inadmissibility to an alien who may be inadmissible. (emphases added)
    • "City of Cleburne v. Cleburne Living Center, Inc., 740 F.3d 379". U.S. Supreme Court. Harvard Law School. July 1, 1985. p. 439. The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.
  29. ^ a b c d e f g h 8 U.S.C. § 1181(c) ("Nonapplicability to aliens admitted as refugees")
    • "Vartelas v. Holder, 566 U.S. 257 (2012)". U.S. Supreme Court. Harvard Law School. March 28, 2012. p. 263. An alien seeking 'admission' to the United States is subject to various requirements, see, e.g., § 1181(a), and cannot gain entry if she is deemed 'inadmissible' on any of the numerous grounds set out in the immigration statutes, see § 1182.
  30. ^ a b c d e f g h i j "Matter of N-V-G-, 28 I&N Dec. 380". Board of Immigration Appeals. U.S. Dept. of Justice. September 17, 2021. A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not 'previously been admitted to the United States as an alien lawfully admitted for permanent residence' under that provision.
    • "Matter of J-H-J-, 26 I&N Dec. 563" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. May 12, 2015. An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.
    • "In re Michel, 21 I&N Dec. 1101" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. January 30, 1998. An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.
      • "De Leon v. Lynch, 808 F.3d 1224". Tenth Circuit. Harvard Law School. December 22, 2015. p. 1232. Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J-H-J- he is correct.
      • "Sambare v. Attorney General, 925 F.3d 124". Third Circuit. Harvard Law School. May 28, 2019. p. 126. In October 2013, however, an Immigration Court granted Sambare's application for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h) and thus restored his status as a lawful permanent resident.
      • "Zamora v. Attorney General, 633 F. App'x 570". Third Circuit. Harvard Law School. December 11, 2015. p. 573. More is required, however, to be eligible for a § 212(h) waiver on the basis of an 'extreme hardship,' 8 U.S.C. § 1182(h)(1)(B), to a qualifying relative.
  31. ^ "Smriko v. Ashcroft, 387 F.3d 279". Third Circuit. Harvard Law School. October 26, 2004. p. 287.
  32. ^ "Landon v. Plasencia, 459 U.S. 21". U.S. Supreme Court. Harvard Law School. November 15, 1982. p. 32.
  33. ^ a b 8 U.S.C. § 1101(a)(3) (emphasis added)
  34. ^ a b c d "Jennings v. Rodriguez, 138 S. Ct. 830". U.S. Supreme Court. Harvard Law School. February 27, 2018. p. 855. The term 'or' is almost always disjunctive, that is, the words it connects are to be given separate meanings. (quotation marks omitted)
  35. ^ 8 U.S.C. § 1159(a)(2) ("Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) ... as an immigrant under this chapter....") (emphasis added)
  36. ^ a b c d "Barton v. Barr, 140 S. Ct. 1442". U.S. Supreme Court. Harvard Law School. April 23, 2020. p. 1446. The umbrella statutory term for being inadmissible or deportable is 'removable.'
  37. ^ a b c d e f "Alabama v. Bozeman, 533 U.S. 146". U.S. Supreme Court. Harvard Law School. June 11, 2001. p. 153. The word 'shall' is ordinarily the language of command. (internal quotation marks omitted)
  38. ^ 8 U.S.C. § 1159(c) (emphasis added)
  39. ^ a b c d 8 U.S.C. § 1231(b)(3)(A) (emphasis added)
  40. ^ "Tima v. Attorney General, 903 F.3d 272". Third Circuit. Harvard Law School. September 6, 2018. p. 276. Congressional drafting manuals instruct drafters to break statutory sections down into subsections, paragraphs, subparagraphs, clauses, and subclauses. Lowercase letters mark subsections, Arabic numerals mark paragraphs, capital letters mark subparagraphs, romanette numerals mark clauses, and Roman numerals mark subclauses.
  41. ^
  42. ^ "Immigration & Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415". U.S. Supreme Court. Harvard Law School. May 3, 1999. p. 420.
  43. ^ "Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062". U.S. Supreme Court. Harvard Law School. March 23, 2020. p. 1072. The statutory history and precedent, as well as the legislative history, thus support the conclusion that the statutory term 'questions of law' includes the application of a legal standard to established facts.
  44. ^ a b c "Reopening or reconsideration before the Board of Immigration Appeals". National Archives and Records Administration. The time and numerical limitations set forth in [8 C.F.R. § 1003.2(c)(2)] shall not apply to a motion to reopen proceedings....
    • "Bamaca-Cifuentes v. Attorney General, 870 F.3d 108". Third Circuit. Harvard Law School. August 29, 2017. p. 111. [T]he 90-day time bar (and restriction to file only one motion) will be waived for motions to reopen that (1) apply or reapply for asylum or withholding of deportation that are (2) based on changed country conditions and (3) supported by material evidence unavailable at the previous hearing.
    • "Silva v. Garland, 993 F.3d 705". Ninth Circuit. Casetext.com. March 30, 2021. p. 718 n.8. We have held that these regulations also apply to claims under the Convention Against Torture.
    • "Olasco-Amaya v. Garland, No. 20-70187" (PDF). Ninth Circuit. Ninth Circuit. September 28, 2021. p. 5.
    • "Vega-Anguiano v. Barr, 982 F.3d 542". Ninth Circuit. Casetext.com. November 19, 2019. p. 545. A petition for review filed under § 1252(b)(1) triggers judicial review and the exercise of jurisdiction under § 1252(a)(1). Because Vega-Anguiano filed his petition for review of his reinstatement order under § 1252(b)(1), he may bring any collateral attack authorized by § 1252(a)(1).
    • "Gonzalez-Cantu v. Sessions, 866 F.3d 302". Fifth Circuit. Harvard Law School. August 1, 2017. p. 306.
    • "United States v. Charleswell, 456 F.3d 347". Third Circuit. Harvard Law School. August 1, 2006. p. 352. Having determined that we may review Charleswell's attempt to collaterally challenge the 1991 Deportation order, we next address whether he is able to meet the Mendoza-Lopez requirements.
  45. ^ a b
    • "Howell v. Superintendent Albion SCI, 978 F.3d 54". Third Circuit. Casetext.com. October 21, 2020. p. 59. The overarching question in this case is whether Howell has made a sufficient showing of actual innocence to gain relief under Rule 60(b)(6) – relief that would serve as a gateway past the procedural default of his having untimely filed his habeas petition, thus allowing the petition to be considered.
    • "Vosgien v. Persson, 742 F.3d 1131". Ninth Circuit. Harvard Law School. February 13, 2014. p. 1134. A federal habeas petitioner can overcome a procedural default, including a failure to comply with the statute of limitations, by demonstrating actual innocence of the crime underlying his conviction.
    • "Alaimalo v. United States, 645 F.3d 1042". Ninth Circuit. Harvard Law School. February 28, 2011. p. 1047. A petitioner is actually innocent when he was convicted for conduct not prohibited by law.
    • "United States v. Olano, 507 U.S. 725". U.S. Supreme Court. Harvard Law School. April 26, 1993. p. 736. The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant....
  46. ^ a b c
    • "Balbuena v. Sullivan, 980 F.3d 619". Ninth Circuit. Casetext.com. August 17, 2020. p. 638. Under Rule 60(b), a party may seek relief from a final judgment under limited circumstances, including fraud, mistake, newly discovered evidence, or any other reason that justifies relief.
    • "Baxter v. Bressman, 874 F.3d 142". Third Circuit. Harvard Law School. October 18, 2017. p. 149. Rule 60 has no applicability where, as here, a party requests relief from a final judgment in response to an opponent's alleged fraud on the court.
    • "Luna v. Bell, 887 F.3d 290". Sixth Circuit. Harvard Law School. April 5, 2018. p. 294. Under Rule 60(b)(2), a party may request relief because of 'newly discovered evidence.' The movant needs to show by clear and convincing evidence (1) that it exercised due diligence to obtain the evidence and (2) that the evidence is material, i.e., would have clearly resulted in a different outcome.
    • "United States v. Handy, No. 18-3086". Tenth Circuit. Casetext.com. July 18, 2018. p. 5. [W]hen Rule 60(b)(4) is applicable, 'relief is not a discretionary matter; it is mandatory.' And the rule 'is not subject to any time limitation.' (citation omitted)
    • "United States v. Sierra, No. 17-12418". Eleventh Circuit. Casetext.com. January 29, 2018. p. 6-7.
    • Hague, Hague, David R. "Fraud on the Court and Abusive Discovery, 16 Nev. L.J. 707 (2016)". William S. Boyd School of Law. p. 725.{{cite web}}: CS1 maint: multiple names: authors list (link)
  47. ^ a b "Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13". U.S. Supreme Court. Harvard Law School. November 8, 2017. p. 20 n.9. In determining whether Congress intended [§ 1252(b)(1)] to be jurisdictional, we consider context, including this Court's interpretations of similar provisions in many years past, as probative of Congress' intent... we have made plain that most statutory time bars are nonjurisdictional. (brackets, citations and quotation marks omitted)
    • "Wallace v. Superintendent Mahanoy SCI, 2 F.4th 133". Third Circuit. Casetext.com. June 22, 2021. p. 143-44. Equitable tolling applies when a petitioner has been prevented in 'some extraordinary way' from timely filing and has 'exercised reasonable diligence' in bringing the claims.
  48. ^ a b c d e
    • "Correctional Services Corp. v. Malesko, 534 U.S. 61". U.S. Supreme Court. Harvard Law School. November 27, 2001. p. 74. [I]njunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.
    • "Nken v. Holder, 556 U.S. 418". U.S. Supreme Court. Harvard Law School. April 22, 2009. p. 428. When a court employs 'the extraordinary remedy of injunction,' Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982), it directs the conduct of a party, and does so with the backing of its full coercive powers.
    • Justice Sotomayor, dissenting, ed. (July 3, 2014). "Wheaton College v. Burwell, 134 S. Ct. 2806". U.S. Supreme Court. Harvard Law School. p. 2810. Under our precedents, '[a]n injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably clear.'
    • Chief Justice Roberts, in-Chambers, ed. (September 30, 2010). "Lux v. Rodrigues, 561 U.S. 1306". U.S. Supreme Court. Harvard Law School. p. 1307. To obtain injunctive relief from a Circuit Justice, an applicant must demonstrate that the legal rights at issue are indisputably clear. (citation and quotation marks omitted)
  49. ^ a b c d See, e.g.,
    • "Cheneau v. Garland, No. 15-70636". Ninth Circuit. Casetext.com. May 18, 2021. p. 3. Cheneau is a citizen of the United States. Accordingly, we GRANT the petition for review, VACATE the BIA's decision, and REMAND with instructions to terminate Cheneau's removal proceedings.
    • "Addo v. Barr, 982 F.3d 1263". Tenth Circuit. Casetext.com. December 14, 2020. p. 1268 n.4. We note that Petitioner's removal has not mooted his petition for review because, 'in the event this court grants his petition, [Immigration and Customs Enforcement] would facilitate his return to the United States pursuant to its Facilitation of Return Policy.'
    • "Singh v. United States Citizenship & Immigration Services, 878 F.3d 441". Second Circuit. Harvard Law School. December 22, 2017. p. 443. The government conceded that Singh's removal was improper given the Ninth Circuit's stay. Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary-parole to certain aliens.
    • "Bonilla v. Lynch, 840 F.3d 575". Ninth Circuit. Harvard Law School. July 12, 2016. p. 589-90.
    • "Orabi v. Attorney General, 738 F.3d 535". Third Circuit. Harvard Law School. January 2, 2014. p. 543. The judgment of the BIA will therefore be reversed, with instructions that the Government, pursuant to its August 12, 2013 letter, be directed to return Orabi to the United States in accordance with the ICE regulations cited.
      • "Avalos-Palma v. United States, Civil Action No. 13-5481(FLW)". U.S. District Court for the District of New Jersey. Casetext.com. July 16, 2014. p. 3. On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States.
        • "In re Vikramjeet Sidhu, A044 238 062". Board of Immigration Appeals. Scribd. November 30, 2011. p. 1-2. As related in his brief on appeal, the respondent was physically removed from the United States in June 2004, but subsequently returned to this country under a grant of humanitarian parole.... Accordingly, the proceedings will be terminated.
  50. ^ a b c d e 8 U.S.C. § 1408 (emphases added)
  51. ^ 8 U.S.C. § 1427(b) (Congress explaining that lawful permanent residents may lawfully remain outside the United States for one year (or even longer) in certain situations).
  52. ^ a b c "Saliba v. Attorney General, 828 F.3d 182". Third Circuit. Harvard Law School. July 8, 2016. p. 189. [A]n applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'
  53. ^ a b 8 U.S.C. § 1229a(c)(3)(A) ("In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.")
    • 8 CFR 1240.8(a) ("A respondent charged with deportability shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is deportable as charged.")
    • 8 CFR 1240.46(a) ("A determination of deportability shall not be valid unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.")
    • "Matter of Pichardo, 21 I&N Dec. 330" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 23, 1996. p. 333. In fact, this conviction may support a finding of deportability under section 241(a)(2)(C) of the Act, but only if the record contains clear, unequivocal, and convincing proof that possession of a firearm was an integral element of the offense that the respondent was convicted of committing.... In other words, the evidence of record must establish that the respondent was, in fact, convicted of criminally possessing a firearm within the meaning of section 241(a)(2)(C) of the Act.
    • "Mondaca-Vega v. Lynch, 808 F.3d 413". Ninth Circuit. Harvard Law School. December 15, 2015. p. 417. We ... hold that 'clear, unequivocal, and convincing' is the familiar intermediate standard used in civil cases when particularly important individual interests are at stake.
    • "Ward v. Holder, 733 F.3d 601". Sixth Circuit. Harvard Law School. August 15, 2013. p. 605. In addition to the Ninth Circuit and our Circuit, the First, and the Fifth Circuits have faced the same fact pattern and have held that the government must prove inadmissibility by clear, unequivocal, and convincing evidence.
    • "United States v. Thompson-Riviere, 561 F.3d 345". Fourth Circuit. Harvard Law School. March 26, 2009. p. 349. To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an 'alien,'
    • "Francis v. Gonzales, 442 F.3d 131". Second Circuit. Harvard Law School. March 27, 2006. p. 138. In this case, however, because Francis is a permanent resident, the government bears the burden of proof, which it must meet by adducing 'clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.'
    • "Berenyi v. District Director, Immigration & Naturalization Service, 385 U.S. 630". U.S. Supreme Court. Harvard Law School. January 23, 1967. p. 636. When the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' (footnotes omitted)
    • "Woodby v. Immigration & Naturalization Service, 385 U.S. 276". U.S. Supreme Court. Harvard Law School. December 12, 1966. p. 286. We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.
    • "Chaunt v. United States, 364 U.S. 350". U.S. Supreme Court. Harvard Law School. November 14, 1960. p. 351-56.
  54. ^ a b c d "Kennedy v. Mendoza-Martinez, 372 U.S. 144". U.S. Supreme Court. Harvard Law School. February 18, 1963. p. 160. (citation and internal quotation marks omitted)
    • "Arizona v. United States, 567 U.S. 387". U.S. Supreme Court. Harvard Law School. June 25, 2012. p. 395. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.
  55. ^ a b c d "Deprivation Of Rights Under Color Of Law". U.S. Dept. of Justice. May 31, 2021. Retrieved May 31, 2021. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials....
  56. ^ a b c "United States v. Lanier, 520 U.S. 259". U.S. Supreme Court. Harvard Law School. March 31, 1997. p. 264. Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States.
    • "Hope v. Pelzer, 536 U.S. 730". U.S. Supreme Court. Harvard Law School. June 27, 2002. p. 739. Officers sued in a civil action for damages under 42 U. S. C. § 1983 have the same right to fair notice as do defendants charged with the criminal offense defined in 18 U. S. C. §242.
      • "United States v. Acosta, 470 F.3d 132". Second Circuit. Harvard Law School. November 30, 2006. p. 136. Section 241 proscribes conspiracies that seek to 'injure, oppress, threaten, or intimidate any person' in connection with exercising or enjoying constitutional rights.
  57. ^ a b 18 U.S.C. § 2441 ("War crimes")
  58. ^ a b c d "Article 3". Office of the United Nations High Commissioner for Human Rights. No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
    • "Nasrallah v. Barr, 140 S. Ct. 1683". U.S. Supreme Court. Harvard Law School. June 1, 2020. p. 1690. CAT prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured.
  59. ^ a b c "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. pp. 806–7. Retrieved 2018-09-27. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution....
  60. ^ a b c d "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. (emphases added)
  61. ^ a b c d 8 U.S.C. § 1252(a)(1) ("Judicial review of a final order of removal ... is governed only by chapter 158 of title 28, except as provided in subsection (b)...."); 28 U.S.C. § 2344 ("The petition shall contain a concise statement of—(1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.") (emphasis added)
  62. ^ a b c d e f "Rubin v. Islamic Republic of Iran, 138 S. Ct. 816". U.S. Supreme Court. Harvard Law School. February 21, 2018. p. 824. (internal quotation marks and brackets omitted)
    • "Lamie v. United States Trustee, 540 U.S. 526". U.S. Supreme Court. Harvard Law School. January 26, 2004. p. 534. It is well established that when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms. (quotation marks omitted)
    • "Robinson v. Shell Oil Co., 519 U.S. 337". U.S. Supreme Court. Harvard Law School. February 18, 1997. p. 341. The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
    • "United States v. Menasche, 348 U.S. 528". U.S. Supreme Court. Harvard Law School. April 4, 1955. p. 538-39. It is our duty to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section, as the Government's interpretation requires. (citation and quotation marks omitted)
    • "NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1". U.S. Supreme Court. Harvard Law School. April 12, 1937. p. 30. The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.
      • "United States v. Williams, 917 F.3d 195". Third Circuit. Harvard Law School. March 5, 2019. p. 202. A cardinal rule of statutory interpretation is that courts should avoid interpreting a statute in ways that would render certain language superfluous.
      • "In re Kaiser Aluminum Corp., 456 F.3d 328". Third Circuit. Harvard Law School. July 26, 2006. p. 338. A basic tenet of statutory construction is that courts should interpret a law to avoid absurd or bizarre results.
  63. ^ "Subtitle J—Provisions Relating to the Deportation of Aliens Who Commit Aggravated Felonies, Pub. L. 100-690, 102 Stat. 4469-79, § 7342". U.S. Congress. November 18, 1988. pp. 289–90. Retrieved 2018-09-26. Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end thereof the following new paragraph: '(43) The term 'aggravated felony' means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code], or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.' {{cite web}}: External link in |quote= (help) (emphases added)
  64. ^
    • 8 U.S.C. § 1182(a)(2)(A)(ii)(II)
    • 8 U.S.C. § 1227(a)(2)(A)(i)
      • "United States v. McAdory, 935 F.3d 838". Ninth Circuit. Harvard Law School. August 28, 2019. p. 844. None of McAdory's prior convictions had standard sentencing ranges exceeding one year, nor were any accompanied by written findings of any of the statutory factors that would justify an upward departure. Thus, the district court convicted McAdory under § 922(g)(1) even though he had no predicate offenses within the meaning of the statute.
      • "United States v. Valencia-Mendoza, 912 F.3d 1215". Ninth Circuit. Harvard Law School. January 10, 2019. p. 1224. In sum, the Supreme Court has held that courts must consider both a crime's statutory elements and sentencing factors when determining whether an offense is 'punishable' by a certain term of imprisonment.
      • "United States v. Williams, 5 F.4th 973". Ninth Circuit. Casetext. July 16, 2021. The panel held that the Washington offense of theft from a vulnerable adult in the second degree was not 'punishable by a term of imprisonment exceeding one year' when the statutory maximum sentence exceeded one year but the maximum sentence allowed under the State's mandatory sentencing guidelines did not. Accordingly, the district court erred in determining that the defendant committed a Grade B supervised release violation.
      • "United States v. Hisey, ___ F.4th ___, No. 20-3106". Tenth Circuit. Casetext. September 14, 2021. We reverse, concluding that Mr. Hisey has overcome the procedural default by showing actual innocence. He did not commit the underlying offense (unlawfully possessing firearms after a felony conviction) because he had no prior conviction punishable by more than a year in prison.
      • "United States v. Haltiwanger, 637 F.3d 881". Eigth Circuit. Harvard Law School. March 25, 2011. p. 884.
  65. ^ a b c 8 U.S.C. § 1101(a)(43) ("The term ['aggravated felony'] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.") (emphasis added)
    • "Matter of Vasquez-Muniz, 23 I&N Dec. 207" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. January 15, 2002. p. 211. This penultimate sentence, governing the enumeration of crimes in section 101(a)(43) of the Act, refers the reader to all of the crimes 'described in' the aggravated felony provision.
    • "Torres v. Lynch, 136 S. Ct. 1619". U.S. Supreme Court. Harvard Law School. May 19, 2016. p. 1627. The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law.
    • "Zivkovic v. Holder, 724 F.3d 894". Seventh Circuit. Harvard Law School. July 31, 2013. p. 911. Because Zivkovic's aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal (although they can be used for many other purposes under the statute).
    • "Ledezma-Galicia v. Holder, 636 F.3d 1059". Ninth Circuit. Harvard Law School. March 29, 2010. p. 1080. Ledezma-Galicia is not removable by reason of being an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions, like Ledezma-Galicia's, that occurred prior to November 18, 1988.
  66. ^ "Salmoran v. Attorney General, 909 F.3d 73". Third Circuit. Harvard Law School. November 26, 2018. p. 75. Accordingly, while Salmoran is removable, he may still file an application for cancellation of removal.
  67. ^ "Othi v. Holder, 734 F.3d 259". Fourth Circuit. Harvard Law School. October 29, 2013. p. 265.
  68. ^ Thornton, Kelly (April 16, 2004). "Afghan immigrant sentenced to time served". The San Diego Union-Tribune. Archived from the original on 2018-10-03. Retrieved 2018-10-02. Man also will lose his U.S. citizenship
  69. ^ a b Stanton, Ryan (May 11, 2018). "Michigan father of 4 was nearly deported; now he's a U.S. citizen". www.mlive.com. Retrieved 2018-10-18.
  70. ^ a b Sakuma, Amanda (October 24, 2014). "Lawsuit says ICE attorney forged document to deport immigrant man". MSNBC. Retrieved 2018-10-20.
  71. ^ a b "Child Citizenship Act of 2000 ('CCA'), Pub. L. No. 106-395, 114 Stat. 1631 (2000)" (PDF). United States Congress. October 30, 2000. p. 1633. The amendments made by this title shall take effect 120 days after the date of the enactment of this Act and shall apply to individuals who satisfy the requirements of section 320 or 322 of the Immigration and Nationality Act, as in effect on such effective date. (emphases added)
    • "Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164". Third Circuit. Casetext.com. August 30, 2019. p. 180. Here, Congress has created a remedy; we are simply giving effect to the plain meaning of its words.
    • "Gomez-Diaz v. Ashcroft, 324 F.3d 913". Seventh Circuit. Harvard Law School. April 7, 2003. p. 915. The Child Citizenship Act of 2000, Pub.L. No. 106-395, 114 Stat. 1631, revised the manner in which children of non-citizens born outside the United States are eligible to become U.S. citizens.
    • "Belleri v. United States, 712 F.3d 543". Eleventh Circuit. Harvard Law School. March 14, 2013. p. 545. A child acquires derivative citizenship by operation of law, not by adjudication.
    • "United States v. Ashurov, 726 F.3d 395". Third Circuit. Harvard Law School. August 12, 2013. p. 398. As the District Court recognized, 'such' means 'of the character, quality, or extent previously indicated or implied.'
    • "United States v. A.M., 927 F.3d 718". Third Circuit. Harvard Law School. June 20, 2019. p. 721.
    • Judge Fernandez, dissenting, ed. (June 22, 2001). "Hughes v. Ashcroft, 255 F.3d 752". Ninth Circuit. Harvard Law School. p. 760. As I see it, the language could be construed to allow coverage of individuals who had reached the age of 18 years before the CCA's effective date.
    • Board Member Rosenberg, dissenting, ed. (July 24, 2001). "Matter of Rodriguez-Tejedor, 23 I&N Dec. 153" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. p. 170-71. Accordingly, in my view, 'as in effect on the effective date' clearly refers to the conditions that 'have been fulfilled' and exist now. No matter whether these conditions were met previously, or what the individual's status was previously, these are the rules that determine the person's citizenship status as of the February 27, 2001, effective date, i.e., now.
    • "Khalid v. Sessions, 904 F.3d 129". Second Circuit. Harvard Law School. September 13, 2018. p. 138. [T]he derivative citizenship statute as amended by the CCA promotes 'Congress's remedial purposes' of 'keep[ing] families intact.'
    • "Matter of Fuentes-Martinez, 21 I&N Dec. 893" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. July 24, 2001. p. 896 n.4. A person who claims to have derived United States citizenship by naturalization of a parent may apply to the Attorney General for a certificate, but a certificate is not required.
  72. ^ "Immigration Library: Court Decisions". Greenberg Traurig. January 28, 2002. Although the INS appears to have taken the position that the act is not retroactive, the language of the CCA's and Congress' intent have not yet been universally determined, and there may still be room for individuals to continue arguing in favor of its retroactive application....
  73. ^
  74. ^
    • "Bordamonte v. Attorney General, 637 F. App'x 76". Third Circuit. Harvard Law School. January 20, 2016. p. 81-82. While § 1432(a) may be subject to criticism—which is perhaps why Congress has since repealed it and eliminated the 'legal separation' requirement....
    • "Petition for Naturalization of Tubig, 559 F. Supp. 2". U.S. District Court for the Northern District of California. Harvard Law School. October 7, 1981. p. 3. Section 322 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1433(a), permits a child under the age of eighteen born outside of the United States at least one of whose parents is a citizen of the United States to be naturalized on the petition of the citizen-parent. A person naturalized under § 1433(a) need not meet many of the requirements for naturalization—such as language, residence, and physical presence requirements—imposed upon those who seek naturalization under other provisions of the Code.
    • "Dent v. Sessions, 900 F.3d 1075". Ninth Circuit. Harvard Law School. August 17, 2018. p. 1080. Petitioner brings a facial challenge to 8 U.S.C. § 1433 (1982), a citizenship statute that was in effect when he began the naturalization process.
  75. ^
    • "United States v. Allen, 153 F.3d 1037". Ninth Circuit. Harvard Law School. September 22, 1998. p. 1044. Nunc pro tunc signifies now for then, or in other words, a thing is done now, which shall have same legal force and effect as if done at time when it ought to have been done. (internal quotation marks omitted)
    • "Barden v. Keohane, 921 F.2d 476". Third Circuit. Harvard Law School. December 13, 1990. p. 477 n.2. The Latin phrase nunc pro tunc describes a doctrine that permits acts to be done after the time they should have been done with a retroactive effect—a Latin term meaning literally, 'now for then.' An act nunc pro tunc is an 'entry made now of something actually previously done to have effect of former date, [previously] omitted through inadvertence or mistake.'
  76. ^ "United States v. Warren, 338 F.3d 258". Third Circuit. Harvard Law School. August 7, 2003. p. 265. Simply labeling a statement in an opinion as a 'holding' does not necessarily make it so. Gratuitous statements in an opinion that do not implicate the adjudicative facts of the case's specific holding do not have the bite of precedent. They bind neither coordinate nor inferior courts in the judicial hierarchy. They are classic obiter dicta: 'statement[s] of law in the opinion which could not logically be a major premise of the selected facts of the decision.'
  77. ^ 18 U.S.C. § 1001(a) ("Statements or entries generally")
  78. ^
  79. ^
    • "H.R. Rep. No. 106-852 (2000)" (PDF). U.S. House of Representatives. U.S. Congress. September 14, 2000. p. 4-5. Automatic citizenship for [Samoan American] children will spare [their] parents the delays and ... would also ensure that [such] children are not deprived of U.S. citizenship....
    • "H.R.2731 - Adoptee Citizenship Act of 2019". U.S. House of Representatives. U.S. Congress. May 14, 2019.
  80. ^ "Tineo v. Attorney General, 937 F.3d 200". Third Circuit. Casetext.com. September 4, 2019. p. 210. [B]ecause of Congress's 'broad power to admit or exclude [noncitizens],' statutes governing immigration benefits to noncitizens need only be supported by a rational basis, even where they differentiate on the basis of [age].
  81. ^ "Citizens United v. Federal Election Commission, 558 U.S. 310". U.S. Supreme Court. Harvard Law School. January 21, 2010. p. 362. Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.
  82. ^ a b "U.S. citizen mistakenly put in deportation proceedings finally returns to America". NBC News. February 4, 2020. Retrieved 2021-09-27.
  83. ^ "Cambodian refugee who advocates say was wrongly deported returns to U.S." NBC News. February 28, 2020. Retrieved 2021-09-27.
  84. ^ "Fernandez v. Keisler, 502 F.3d 337". Fourth Circuit. Harvard Law School. September 26, 2007. p. 341.
  85. ^ "Destination USA: 75 million international guests visited in 2014". share.america.gov. 2015-09-24. Retrieved 2018-09-30.
  86. ^ "International Visitation to the United States: A Statistical Summary of U.S. Visitation" (PDF). U.S. Department of Commerce. 2015. p. 2. Retrieved 2018-09-30.
  87. ^ 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
  88. ^ a b
  89. ^ a b "Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462". Attorney General. U.S. Dept. of Justice. September 18, 2018. p. 347 n.6. Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 C.F.R. § 1240.12(c).
  90. ^ Chung, Andrew (April 17, 2018). "Supreme Court restricts deportations of immigrant felons". Reuters.
  91. ^ 8 U.S.C. § 1227(a)(2)(A)(vi)
  92. ^ 8 U.S.C. § 1158(b)(2)(B)(i)
  93. ^ 8 U.S.C. § 1158(b)(2)(A)(ii) ("Paragraph (1) shall not apply to an alien if the Attorney General determines that— ... (ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States")
  94. ^
    • "Anwari v. Attorney General, No. 18-1505". Third Circuit. Casetext.com. November 6, 2018. p. 6. To qualify for deferral of removal under the CAT, an applicant must show that he is 'more likely than not' to be tortured.
    • "Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270" (PDF). Attorney General. U.S. Dept. of Justice. March 5, 2002. p. 279. Although the respondents are statutorily ineligible for withholding of removal by virtue of their convictions for 'particularly serious crimes,' the regulations implementing the [CAT] allow them to obtain a deferral of removal notwithstanding the prior criminal offenses if they can establish that they are 'entitled to protection' under the Convention.
  95. ^ "United States v. Vidal-Mendoza, 705 F.3d 1012". Ninth Circuit. Harvard Law School. January 15, 2013. p. 1013-14 n.2. Voluntary departure is not available to an alien who has been convicted of an aggravated felony.
  96. ^
  97. ^
    • "Bibiano v. Lynch, 834 F.3d 966". Ninth Circuit. Harvard Law School. August 19, 2016. p. 969. We join the noncontroversial holding—shared by the nine other circuits which have addressed this issue in detail—that § 1252(b)(2)'s venue provision is not jurisdictional.
    • "United States v. Calderon, 243 F.3d 587". Second Circuit. Harvard Law School. March 1, 2001. p. 590. Venue is not jurisdictional....
  98. ^ "Tazu v. Attorney General, 975 F.3d 292". Third Circuit. Casetext.com. September 14, 2020. p. 294. For an alien challenging his removal, that path begins with a petition for review of his removal order, not a habeas petition.; "Abdulla v. Attorney General, 971 F.3d 409". Third Circuit. Casetext.com. August 20, 2020. p. 412. We exercise plenary review over [Petitioner]'s due process claim and questions of law.
  99. ^ "United States v. Lanier, 520 U.S. 259". U.S. Supreme Court. Harvard Law School. March 31, 1997. p. 264-65 n.3. (emphases added)
  100. ^ "There Is No Good Reason to Block Afghan Refugees". Cato Institute. August 16, 2021. Retrieved 2021-09-28.
  101. ^ Haand, Jafar (January 30, 2018). "Afghanistan Calls on Trump to Not Deport Afghans". Voice of America. Retrieved 2018-10-02.
  102. ^ a b "Historical Data: Immigration and Customs Enforcement Removals". TRAC Reports, Inc. 2016. Retrieved 2018-10-02.
  103. ^ "Taliban Would Take Back Europe's Afghan Deportees to Face Courts, Says Spokesman". Reuters. U.S. News & World Report. August 30, 2021. Retrieved 2021-09-28.
  104. ^ "Taliban Official: Strict Punishment, Executions Will Return". U.S. News & World Report. September 23, 2021. Retrieved 2021-09-26.
  105. ^ "Taliban Official Says Strict Punishment And Executions Will Return". NPR. September 24, 2021. Retrieved 2021-09-28.
  106. ^ "Taliban founder says strict punishment, amputations to return to Afghanistan". Fox News. September 24, 2021. Retrieved 2021-09-24.
  107. ^ Castner, Brian (August 18, 2017). "The Fight of His Life". Esquire (magazine). Retrieved 2018-10-31.
  108. ^ Agerholm, Harriet (July 11, 2018). "Afghan asylum seeker commits suicide day after being deported from Germany". The Independent. Retrieved 2018-11-01.
  109. ^ "Afghan evacuee arriving in DC was convicted felon deported from US in 2017: report". Fox News. September 16, 2021. Retrieved 2021-09-28.
  110. ^ "You Say You're An American, But What If You Had To Prove It Or Be Deported?". National Public Radio (NPR). December 22, 2016. Retrieved 2018-10-18.
  111. ^ Hoffman, Meredith (March 8, 2016). "The US Keeps Mistakenly Deporting Its Own Citizens". news.vice.com. Retrieved 2018-10-18.
  112. ^ Stevens, Jacqueline (September 22, 2011). "Virginia Journal of Social Policy & the Law" (PDF). jacquelinestevens.org. p. 608. Retrieved 2018-10-18.
  113. ^ "UNITED STATES CITIZENS IN DEPORTATION PROCEEDINGS". Northwestern University. 2017. Retrieved 2018-10-18.
  114. ^ See, e.g.,
    • "Flores-Abarca v. Barr, 937 F.3d 473". Fifth Circuit. Castext.com. August 28, 2019. p. 476. On the merits, we hold that the Oklahoma misdemeanor of transporting a loaded firearm in a motor vehicle is not one of the firearms offenses listed under 8 U.S.C. § 1227(a)(2)(C).
    • "United States v. Aguilera-Rios, 769 F.3d 626". Ninth Circuit. Harvard Law School. June 17, 2014. p. 637. A conviction under California Penal Code § 12021(c)(1) is therefore not a categorical match for the § 1227(a)(2)(C) firearms offense.
    • "Adefemi v. Ashcroft, 386 F.3d 1022". Eleventh Circuit. Harvard Law School. September 28, 2004. p. 1029. [T]he INS was required to prove that the crime for which Adefemi was convicted was, in fact, a firearms offense and not some other offense.
    • "Lemus-Rodriguez v. Ashcroft, 350 F.3d 652". Seventh Circuit. Harvard Law School. November 26, 2003. p. 655. So Lemus-Rodriguez is not barred from claiming that his criminal use of the rifle had a 'cultural purpose.'
    • "Matter of Rainford, 20 I&N Dec. 598" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. September 9, 1992.
    • "Commonwealth v. Schilling, 288 Pa. Super. 359, 431 A.2d 1088". Superior Court of Pennsylvania. Harvard Law School. June 12, 1981. p. 364. We find this contention to be persuasive and hold that a pellet or 'B-B' gun is not contemplated as a 'firearm' under the Uniform Firearms Act.
    • "Matter of Granados, 16 I&N Dec. 726" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 26, 1979.
  115. ^ See, e.g.,
    • "Matter of Campos-Torres, 22 I&N Dec. 1298" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. March 21, 2000. A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one 'referred to in section 212(a)(2)' and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.
    • "Lopez v. Sessions, 901 F.3d 1071". Ninth Circuit. Harvard Law School. August 22, 2018. p. 1077. [T]he structure and text of the statute indicate that the fact of conviction (not the underlying conduct) is the relevant transaction for purposes of the retroactivity analysis.
    • "Jaghoori v. Holder, 772 F.3d 764". Fourth Circuit. Harvard Law School. November 18, 2014. p. 769. Although we generally defer to agency interpretations of statutes that are ambiguous, 'a statute that is ambiguous with respect to retroactive application is construed ... to be unambiguously prospective.'
    • "Jeudy v. Holder, 768 F.3d 595". Seventh Circuit. Harvard Law School. September 15, 2014. p. 605. Applying § 1229b(d)(l)(B) in this case would impose a new disability on pre-IIRIRA conduct without a clear statement from Congress indicating its intent to impose that disability. We therefore hold that Jeudy's 1995 drug conviction did not 'stop time' for his continuous residence in the United States.
    • "Sinotes-Cruz v. Gonzales, 468 F.3d 1190". Ninth Circuit. Harvard Law School. November 22, 2006. p. 1192. We also hold... that the permanent stop-time rule of § 240A(d)(l) ... may not be applied retroactively to prevent Sinotes-Cruz from fulfilling the sevenyear continuous residence requirement ... for cancellation of removal.
  116. ^ "Board of Immigration Appeals". U.S. Dept. of Justice. March 16, 2018. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court.
    • 8 CFR 1003.1(g)(1) ("Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board and decisions of the Attorney General are binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.")
    • "Matter of Dougless, 26 I&N Dec. 197" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. October 17, 2013. p. 199. The [Supreme] Court has also emphasized that the Chevron principle of deference must be applied to an agency's interpretation of ambiguous statutory provisions, even where a court has previously issued a contrary decision and believes that its construction is the better one, provided that the agency's interpretation is reasonable.

External links

source: https://en.wikipedia.org/w/index.php?title=Deportation_of_Afghan_immigrants_from_the_United_States&oldid=1061620904