The Immigration Case Of Michel Jalbert Teaches Larger Lessons

By Leigh McCarthy

Michel Jalbert of Pohenegamook, Quebec, was much in the news this past fall both in Canada and in Maine. His case, which is as perplexing to many American observers as it is to Canadians, is not he result of any changes in the law post 9/11. It underscores the level of discretion with which U.S. law is imposed at the border and offers two important legal lessons for Canadians coming to the border and for their Maine business associates, employers, potential employers, and family members. The first lesson is that the Constitutional separation of powers of the U.S. governments among the three independent federal branches-legislative, judicial, and executive-can lead to multiple simultaneous consequences for a single incident at the border. The second lesson is to be alert at the border to the U.S. immigration law doctrines of "inadmissibility'" and "removal"

THE JALBERT CASE

An understanding of the legal technicalities of what happened to Jalbert is necessary background to understanding the wider lessons of his case. On Friday, October 11, 2002, Michel Jalbert crossed the U.S.-Canadian border from Quebec to Estcourt Station, at the northernmost tip of Maine, to buy gas at Ouellette's Gaz Bar, which is barely inside the border but indeed is in the United States. Jalbert, a thirty-two year old Canadian citizen and lifelong resident of the village of Pohenegamook, which adjoins Estcourt Station, did not get permission to enter the United States before he crossed the border to buy gas. Obtaining permission to enter the United States at Estcourt Station requires driving past the gas station to the U.S. Customs post a few hundred feet farther down the road into the United States. The U.S. Customs Services has responsibility for goods coming into the country, not people, but because there is no U.S. Immigration and Naturalization Service (INS) presence in Estcourt Station, U.S. Customs officers there are cross-designated to inspect aliens coming into the United States. The Customs station, however, is open only part-time, and Canadians in this remote area developed a practice of driving over to get cheaper U.S. gas at Ouellette's without first going to check in with Customs.

Whether this practice of entering Estcourt Station without inspection ever was authorized as a policy of the U.S. government and, if so, whether some time later the policy was changed, have been publicized as the central issues in Jalbert's case and have been a focus of media attention. The localized dispute in Estcourt Station, however, however whether Pohenegamook residents had blanket permission to get gas there without prior inspection at the border, intense as it is, deflects attention from two issues in Jalbert's case that have wider implications for all Canadians coming to the U.S. border-(i) dual simultaneous enforcement of federal criminal law and federal administrative immigration law, and (ii) enforcement of the not widely known but serious immigration doctrines of admissibility and removal.

DOUBLE JEOPARDY AT THE BORDER

Jalbert was stopped at the Estcourt gas station on the afternoon of Friday, October 11, 2002, by an officer of the U.S. Border Patrol, an enforcement arm of the U.S. Immigration and Naturalization Service (INS), who confronted Jalbert, concluded he had entered the United States without permission, saw a firearm in his vehicle (it turned out to be a hunting shotgun), exercised his enforcement discretion to take Jalbert into custody for immigration violations,¹ and reported the arrest to the U.S. Attorney's office. Based on the Border Patrol officer's report, the U.S. Attorney determined there was probable cause to believe a crime had been committed and exercised prosecutorial discretion to detain Jalbert pending a criminal prosecution.

1. The Criminal Proceedings

Monday, October 14, 2002, was the Columbus Day holiday, and on October 15, Michel Jalbert was brought before the U.S. District Court (Kravchuk, Mag. J.) in Bangor for an initial appearance with respect to the criminal charges against him. Jalbert was assigned an appointed defense attorney² and informed he was charged with two federal crimes: improper entry into the United States by an alien violation of 8 U.S.C. 1325 (1997),³ and possession of a firearm by an illegal alien in violation if 18 U.S.C. 922(g) (1996 & Supp. 2002).⁴ The court ordered Jalbert detained in criminal custody until a hearing regarding his eligibility for release on bail. On October 17, 2002, Jalbert appeared before the court, (Singal, J.) for a detention hearing regarding continued custody pending trial on criminal charges leveled against him. He waived his right to a criminal custody hearing, consenting thereby to remain in detention until his trial on the criminal charges.⁵

With Jalbert in jail, the U.S. Attorney's office investigated his background and learned he had a criminal record: a reported 1990 Canadian conviction twelve years earlier when he was twenty years old for breaking and entering and receiving stolen property. He had served no jail time but paid a fine and completed two years' assigned probation.⁶ On November 5, 2002, the U.S. Attorney presented evidence of Jalbert's criminal record to a federal grand jury, which indicted Jalbert for another violation of 18 U.S.C. 922(g): possession of a firearm by a person who has been convicted of a crime punishable by imprisonment for more than one year.⁷

On November 13, 2002, Jalbert was brought before the court (Kravchuk, Mag. J.) for arraignment to allow him to enter please to the three crimes charged against him. The judge explained the crimes to Jalbert, who does not speak English, through an interpreter. Jalbert pleaded not guilty to all three.⁸ At his criminal trial, which is scheduled for March 11,⁹ the U.S. government will have the burden of proving to a jury beyond a reasonable doubt the elements of each of the three crimes charged. Jalbert will have the opportunity to present evidence in his defense, including evidence that he was not unlawfully in the United States because there was in effect a blanket permission for Canadians to cross the border without prior permission to get gas at Ouellette's Gaz Bar in Estcourt Station.

Conviction as a first offender on either of the two firearm possession charges lodged against him would be subject Jalbert to a fine and/or maximum imprisonment of as long as ten years.¹⁰ If, however, he can establish that the firearm he had with him was "solely for lawful sporting purposes" and that his prior conviction was not for a crime of violence, then under the federal sentencing guidelines, maximum possible imprisonment for the firearm offenses could be reduced to six months.¹¹ Conviction for a first offender on the remaining charge of improper entry into the United States by an alien also would subject Jalbert to imprisonment of as long as six months.¹²

With entry of his pleas at his November 13 court appearance, Jalbert's criminal arraignment was complete. What happened next illustrates how an action at the border can trigger consequences under two separate branches of the U.S. government: the judicial branch with respect to criminal law enforcement, and the executive branch with respect to administrative immigration law enforcement.

2. The Reopened Criminal Detention Hearing

Immediately following his arraignment, Jalbert through his attorney moved the court to reopen the previously waived criminal detention hearing on the basis of new information unknown at the time of the detention hearing, and having a material bearing on whether there were conditions of release that would "reasonable assure the appearance of the person and the community."¹³ The new information comprised an offer by Jalbert's father to post $5000 (US) cash bail and take personal custody of his son until trial, and a copy of a 1990 letter indicated on its face to be from a former director of the U.S. Customs Service in Maine and referring to a past practice of allowing Canadian residents of Pohenegamook to get gas at Ouellette's in Estcourt Station without first obtaining permission at the customs station to enter the United States.

The court, in response to Jalbert's motion to reopen the criminal detention hearing, did not address the letter on its substantive merits and made no decision as to whether it authorized Canadians to come to Ouellette's gas station without prior permission. The 1990 letter, however, which had not been available at the original detention hearing on its face related to the nature and circumstances of the charges against Jalbert was material, regardless of its merits, to setting a condition that would allow him to be released on bail pending his criminal trial without jeopardizing community safety.¹⁴ The court on the basis of the new information granted Jalbert's motion to reopen the detention hearing.¹⁵

Having reopened the hearing, the court addressed whether, in light of the nature and circumstances of the charges, Jalbert could be released from criminal custody on bail under particular specific conditions with reasonable assurance he would appear for his trial and not endanger the safety of the community. The government conceded for purposes of the detention hearing that to the best of its knowledge, Jalbert would be entitled under the federal criminal sentencing guidelines to the "sporting" reduction in the potential penalty for the firearm charges to a maximum of six months imprisonment. The only stated danger foreseen by the government if Jalbert were to be released form custody to await trial was that he would return illegally to the United States without permission to buy gas in Estcourt station. The court heard information concerning Jalbert's lifelong residence in Pohenegamook, Quebec, immediately across the border from Estcourt Station, Maine; his family relationships; his work history; his minimal criminal history; and the fact that his father's $5000 cash bail offer constituted nearly all of his father's life savings.

In these circumstances, and in light of the specific criminal charges against Jalbert, the court upon deliberation determined there was some risk Jalbert would not return for trial, but the flight risk was mitigated by the 'sporting' gun sentence reduction, which meant Jalbert would not face an extended mandatory sentence if he returned for trial and were convicted of firearm possession. The court found the remaining degree of flight risk balanced by the potential consequences to Jalbert should he fail to return for trail; forfeiture of his father's $5000 (US) life savings and a default victory for the U.S. government on the issue of whether Pohenegamook residents were authorized to go to the Estcourt Station gas bar without prior permission from the U.S. Customs station.¹⁶

With respect to the single community safety risk asserted by the government - the threat that Jalbert would return to buy gas in Estcourt Station without prior permission - the court offered as a condition for Jalbert's release that the not return to the United States until his criminal trial, even if he still believed himself entitled by past practice or the 1990 Customs director's letter to go to the gas bar in Estcourt Station without prior permission. Jalbert, through his interpreter, indicated he understood the condition and would not return to the United States before his criminal trial. On the condition that his release would be revoked if he returned to the United States prior to his trial, the court ordered Jalbert released from the court's criminal custody on $5000 (U.S.) bail.¹⁷

The court's announcement of Jalbert's release from criminal custody sent a translation-delayed wave of relief through the French-speaking Canadian family members and officials and new media packing the federal court room. But the relief was short-lived. As soon as the translation murmurs died down, the court explained to Jalbert that when he left the courtroom, having been ordered released from the court's criminal custody, he would not go back to Canada but back to jail.

3. Continued Detention for Administrative Immigration Proceedings

In addition to the U.S. Attorney's decision to detain Jalbert for criminal proceedings, the INS had issued a detainer order requiring the U.S. Marshal to hold him for administrative immigration law proceedings. The INS is an agency of the U.S. Department of Justice within the executive branch.¹⁸ Under the cardinal and fundamental constitutional principle of separation of power between the executive and judicial branches of the U.S. government, the federal court could order Jalbert released form the detention imposed by the judicial branch with regard to the criminal law proceedings under the court's jurisdiction, but the judicial branch was powerless to release Jalbert from detention imposed by the INS under its separate executive branch authority to enforce administrative immigration law.¹⁹

A single act at the border may constitute simultaneously both an administrative immigration law violation and a criminal law violation. Having been released by the court from its custody with respect to criminal law proceedings, Jalbert remained in jail on the INS detainer order pending administrative immigration law proceedings, which brings us to the second legal lesson in his case: the immigration law doctrines of "inadmissibility" and "removal."

PRINCIPLES OF IMMIGRATION LAW

1. 'Removal' of Aliens

Perhaps surprisingly, the immigration law provisions imposed on Jalbert were not added to U.S. law because of 9/11. They were enacted in 1996, when Congress made a series of seismic changes to U.S. immigration law.²⁰ Included in those 1996 amendments to the Immigration and Nationality Act were provision for removal of inadmissible aliens for the United States. "Inadmissible" and "removal" are legal terms of art. The doctrine of removal replaced in the prior doctrines of exclusion and deportation, in which a critical (and sometimes metaphysical) determination was required as to whether and alien had "entered" the United States. Under the doctrine of removal for inadmissibility, it no longer matter whether an alien has entered the United States.²¹ An alien who is inadmissible to the United States on any of several specific grounds listed in U.S. immigration statutes²² is removable form the United States, no matter whether the alien is trying to come in to the United States or is already here somehow without having bee admitted by the INS.²³ Removal generally is accomplished by referring the alien for proceedings before an immigration judge, who is an administrative judge with the Executive Office of Immigration review (EOIR), an agency of the Department of Justice like the INS but independent of the INS.²⁴

Jalbert was potentially inadmissible, and therefore, removable, on two grounds of unlawful entry into the United States, and his prior criminal record. (It is important to note that not all criminal convictions render an alien necessarily inadmissible, and, depending on the circumstances of Jalbert's convictions and his sentences, he may or may not be inadmissible on account of his prior criminal record.²⁵) In general, inadmissible aliens are detained by the IND pending removal proceedings, although "parole" into the United States of inadmissible aliens is authorized in certain limited circumstances for urgent humanitarian or significant public benefit reasons.²⁶ When the federal court ordered Jalbert released from its criminal custody, Jalbert continued to be detained for INS removal proceedings.

The INS kept Jalbert in jail one more night. On November 14, 2002, he was released when the INS granted him voluntary departure for a signed statement that he had been illegally in the United States. The statement well may affect his defense against his pending criminal charges, but voluntary departure allowed him to avoid removal proceedings and the immigration consequences of removal and to go home after five weeks in jail. Jalbert took the trade-off.

2. "Voluntary Departure'

"Voluntary departure" is another legal term of art.²⁷ An alien, other than an arriving alien, may request voluntary departure in lieu of removal but is not entitled to it. Voluntary departure is negotiated with the INS in removal proceedings somewhat like a plea bargain is negotiated with a district attorney or a federal prosecutor in a criminal case. The INS has discretion to grant voluntary departure in lieu of removal in order to benefit the government's interests. Granting voluntary department saves the INS the expense of going through full proceedings to get a removal order from an immigration judge and allows the alien to avoid the serious consequences of a removal order, which include a five-year bar on admissibility to the United States.²⁸ Jalbert was granted voluntary departure in lieu of referral for removal proceedings before an immigration judge (the nearest would have been in Boston). In return for avoiding removal he paid the price of sworn statement admitting to his having entered the United States without inspection.

3. 'Expedited' Removal of 'Arriving Aliens'

In one way, Jalbert was lucky. He was in the United States when he was stopped, so that, although he entered without inspection, he was not an arriving alien. "Arriving alien," as defined by regulation, includes any applicant for admission to the United States coming or attempting to come into the United States at port-of- entry, an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or U.S. waters.²⁹ Thousands of Canadians every day come to the U.S. border ports-of-entry as "arriving aliens." Under the 1996 amendments to U.S. immigration law, any "arriving alien" who is inadmissible for failing to present valid entry documents or for willfully misrepresenting a material fact to gain some immigration benefit is subject to what is known as "expedited" or "summary" removal.³⁰ The INS is authorized by statute to apply expedited removal not only to arriving aliens but also to aliens who have entered the United States without inspection (like Jalbert) and been in the United States less than two years,³¹ but not so far has declined to expend expedited removal to aliens who enter without inspection, except for recent decision to apply it to those who have entered without inspection by sea.³²

Expedited removal does not mean the alien gets kicked out of the United States fast. It means the alien is removable on the basis of INS officers' discretionary decisions at the border rather than as a the result of regular removal proceedings and a hearing before immigration judge independent of the INS. An arriving alien in expedited removal is detained (except for medical emergencies or necessary law enforcement objectives)³³ and removed from the United States without a hearing, without legal representation, and with virtually no right of appeal to the board of Immigration Appeals or the federal courts.³⁴

Unlike Jalbert, arriving aliens in removal proceedings are not eligible for voluntary departure.³⁵ The INS does not have discretion to allow an arriving alien to withdraw his or her request to be admitted to the United States and thus to escape expedited removal,³⁶ but because expedited removal does not burden the INS with a hearing and perhaps an appeal to get an order of removal, which ties up INS staff and attorneys, there is less incentive for the INS to grant withdrawal to avoid expedited removal than to grant voluntary departure to avoid removal in regular proceedings.

Immigration inspectors at the border have no obligation to warn arriving aliens about inadmissibility or removal or expedited removal or any of their potential consequences. Expedited removal and its severe consequences, however, can be triggered by even objectively innocuous circumstances.

4. A Good-Faith Hypothetical

For example, consider a Canadian engineer who marries in Maine while working in the States temporarily in "TN" professional status under NAFTA. After a weekend trip to Canada to introduce her new U.S. citizen husband to her elderly grandmother, who could not attend the wedding, the Canadian engineer arrives with her husband at a border port-of-entry heading back to her job in Maine. She tells the immigration inspector truthfully she is wanting to enter the United States to go back to work in her professional engineering position.

Trying to be helpful, she hands the immigration inspector her unexpired TN documentation and her Canadian driver's license. (Because she is a Canadian citizen entering in TN status, she is not required to have a visa in order to seek admission from the INS at the border.) The TN documentation is in her maiden name because it was issued before she was married, but the license is in her married name because she had it changed as soon as she could after the wedding. The INS inspector asks about the name discrepancy. She truthfully explains that she recently married a U.S. citizen. The Canadian engineer is escorted to a secondary inspection where she is asked more questions, all of which she answers truthfully, indicating that as soon as possible she and her husband intend to file the necessary paperwork so she obtain permanent resident status to allow her to remain in the United States with her husband. She is now vulnerable to expedited removal.

To understand the issue that has surfaced unaware for the Canadian engineer, it is important to know that "immigrant" is a term of art referring to a permanent resident of the United States and "nonimmigrant" refers to an alien admitted for a period of time less than permanent. There are dozens of nonimmigrant admission categories, with admission periods ranging from a few days to many years, but all of them allow only temporary not permanent admission. TN is a nonimmigrant temporary admission category.

To be eligible for admission as a TN nonimmigrant, the engineer must intend to remain only temporarily in the United States³⁷ Her marriage to a U.S. citizen and her stated intention to live permanently in the United States with her new husband jeopardize her ability to establish that she has the temporary intent necessary to be admitted in TN status. As an alien seeking admission at the border, the Canadian engineer is presumed to have immigrant intent unless she can establish to the satisfaction of the immigration inspector an intent to remain only temporarily in the United States.³⁸ Not only has the engineer not established temporary intent, she has provided the INS inspector evidence of an intent to remain permanently in the United States. An alien with immigrant intent, who is not in possession of valid immigrant documents, is inadmissible by statute.³⁹

The Canadian engineer is arriving alien inadmissible for failure to possess valid admission documents. As such, she is subject to expedited removal.⁴⁰ Her only hope to avoid expedited removal, and its five-year admissibility bar, is that the immigration inspector at the border will exercise his discretion to allow her to withdraw her request to be admitted to the United States. If he is not so disposed, she will be detained and held for expedited removal proceedings, without an attorney, without a hearing, and probably with no understanding of what is happening or why-or what the consequences are going to be. Before she is removed, the Canadian engineer will be asked to sign a sworn statement prepared by the immigration officers (INS Form I-867). She may sign it having no idea of the nuances of admission she may be confirming or the uses to which they may be put.

Even if the immigration inspector at the border in his discretion suggests to her that she is facing serious immigration consequences and might want to withdraw her application to enter and, assuming she does want to withdraw, allows her to do so, it may be some months before the Canadian engineer and her husband can complete necessary steps to get her back into the United States as the spouse of a U.S. citizen. During this time she will not be able to enter the United States for her employment, and she will not be able to visit her husband because, with immigrant intent but without immigrant admission documents, she will remain inadmissible.⁴¹ She cannot enter the United States as a visitor while she tries to get her status straightened out because visitor admission also requires nonimmigrant, temporary intent. (Our Canadian engineer should not be tempted to try something like coming to another port-of-entry with her old driver's license-willful misrepresentation to an immigration officer to gain an immigration benefit such as admission to the United States is both a violation of immigration law and a federal crime.)

U.S. immigration inspectors at Maine border ports-of-entry generally go out of their way to allow withdrawal of a Canadian's application for admission when inadvertent good faith immigration violations surface and in good faith is in the eye of the beholder. An arriving alien's fate is decided by the immigration inspectors at the border, case by case. Michel Jalbert could tell us how an individual officer's discretionary decisions can play out.

The Unintended Benefit of Michel Jalbert's Five Weeks In Jail

Michel Jalbert spent five weeks in U.S. jails and still may face consequences of serious pending criminal charges. His difficult individual experience, however, may result in an unexpected benefit for his fellow Canadians. The publicity surrounding his case can serve to alert other Canadians, as well as their U.S. business associates, employers, and families to the dual simultaneous judicial and executive powers that can be imposed on aliens at the U.S. border and to the troubling and costly consequences that can arise from the doctrines of inadmissibility and removal, including expedited removal for certain arriving aliens. Informed Canadians of good faith should not fear coming to the U.S. border. Arriving at the border well intentioned but unaware, however, risks being caught in the Byzantine web of U.S. immigration and criminal law and federal INS and prosecutorial discretion.

¹ Memorandum from Doris Meissner, Commissioner, Immigration and Naturalization Service (INS) to INS regional and district directors and counsel and chief patrol agents re: exercising prosecutorial discretion (December 1, 2000) (reprinted at 5 Bender's Immigr. Bull. 995, Matthew Bender & Company, Inc)
² Jon A. Haddow, Esq. Of Farrell, Rosenblatt & Russell, Bangor, Maine
³ U.S.C. 1325 (1997) provides in pertinent part: (a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts. Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18, Code, or imprisoned not more than 6 months, or both, and for a subsequent commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 2 years, or both.
(b) Civil penalty. Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of (1) at least $50 and not more than $250 for each such entry (or attempted entry); or (2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that my be imposed.
⁴ 18 U.S.C. 922(g) 1996 & Supp. 2002) provides in pertinent part: it shall be unlawful for any person - (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year, [or]…. (5) who, being an alien-(A) is illegally or unlawfully in the United States ;…to ship or transport in interstate of foreign commerce, or possess in or affecting commerce, any firearm or ammunitions; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
⁵ See United States v. Jalbert, Crim. No. 02-79-B-S (D. Maine Nov. 14, 2002) (order denying U.S. Government's motion for continued detention with respect to criminal prosecution).
⁶ See id.
⁷ 18 U.S.C. 922(g)(1) (1997 & Supp. 2002) supra note 3.
⁸ See United States v. Jalbert, Crim. No. 02-79-B-S (D. Maine Nov. 14, 2002) (order denying U.S. Government's motion for continued detention with respect to criminal prosecution).
⁹ The Court issued a decisions on February 4, 2003, denying Jalbert's motion to dismiss the three-count indictment charged against him, but pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure, the Court granted Jalbert leave to reassert his motion a t trial with respect to Count I (entry into the United States without inspection) and Count II (possession of a firearm by an illegal alien). The Court deferred ruling on Counts I and II until trial on the ground that the basis on which Jalbert sought dismissal of the two counts i.e. outrageous government conduct in contravention of the defendant's right to due process, requires a determination in light of the totality of relevant circumstances, the Court lacked a developed factual record to make such a determination, the circumstances at issue with respect to the motion to dismiss are central to criminal liability and will be developed at trial, and Jalbert will not be prejudiced by deferral to trial of the motion to dismiss because Jalbert did not request a hearing on the motion nor marshal facts necessary to support his claim. (According to an Associated Press report of the decision, Jalbert's attorney accused the government of "outrageous conduct" by granting permission to go to the gas station and then arresting Jalbert for doing just that; Chief District Judge George Singal ruled that he lacked a factual record to the address the "outrageous conduct" claim but left open the defense attorney's right to refile the motion at trial.)
¹⁰ 18 U.S.C. 924(a)(2) (1996)
¹¹ Crimes and Criminal Procedure Sentencing Guidelines for United States courts, 18 U.S.C.S. Apprx 2K2.1(b)(2) (2002)
¹² 8 U.S.C. 1325(A) (1997)
¹³ 18 U.S.C. 3142©, (F) (1997 & Supp. 2002)
¹⁴ See 18 U.S.C. 3142(g)(1) (1993)
¹⁵ United States v. Jalbert, Crim. No. 02-79-B-S (D. Maine Nov. 14, 2002) (order denying U.S. Government's motion for continued detention with respect to criminal prosecution).
¹⁶ See id.
¹⁷ See id.
¹⁸ Under provisions of the Homeland Security Act (Pub L, No. 107-296) enacted by Congress and signed into law by the President on November 25, 2002, the INS as an agency of the Department of Justice is soon to be abolished. Its duties will be divided and assigned to new bureaus to be established within the new Executive Department of Homeland Security. INS immigration inspectors, the Border Patrol, and alien detention and removal functions will be part of the Bureau of Border and Transportation Security within the Department of Homeland Security. Immigration service functions, including adjudication of applications for citizenship, permanent residency, asylum, and nonimmigrant petitions, will be conducted by the new department's Bureau of Citizenship and Immigration Services. The reorganization timetable published by the White House calls for the two new Bureaus involving immigration matters to be established by January 24, 2003, and INS functions to be transferred to them by March 1, 2003. Separate executive branch authority over administrative immigration law will not be changed by the addition of a new executive department at the reorganization within the executive branch.
¹⁹ U.S. Cont, art II & III; see also Marbury v. Madison, 5 U.S. 137; 1 Cranch 137, 177, 2 L.Ed. 60 (1803)
²⁰ Illegal Immigration reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (enacted as Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610)
²¹ Although an inadmissible alien is removable whether at the border or within the United States, the construct of "deportability" continues to play a role in immigration law. The criminal grounds that render an alien "inadmissible" for example, are somewhat different from the criminal grounds that render an alien with a particular criminal record may be admissible but deportable. Compare 8 U.S.C. 1227(a)(2) (criminal offense grounds for deportability after admission).
²² 8 U.S.C. 1182 (1997 & Supp. 2002)
²³ 8 U.S.C. 11225, 1229A (1997 & Supp. 2002)
²⁴ 8 U.S.C. 1229, 1229a (1997 & Supp. 2002)
²⁵ 8 U.S.C. 1182(a)(2) (1997 & Supp. 2002)
²⁶ 8 U.S.C. 1182(d)(5) (1997 & Supp. 2002)
²⁷ 8 U.S.C. 1229c (1997 & Supp. 2002)
²⁸ 8 U.S.C. 1182(a)(9) (1997 & Supp. 2002)
²⁹ 8 C.F.R. 1.1(Q) (2002)
³⁰ 8 U.S.C. 1225(b)(1)(A)( i ) (1997); arriving aliens inadmissible on other grounds are referred to an immigration judge for a hearing and regular removal proceedings.
³¹ 8 U.S.C. 1225(b)(1)(A)(iii) (1997)
³² Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,311 (1997); Notice Designating Aliens Subject to Expedited Removal under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 fed. Reg. 68,924 (2002
³³ 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (1997); 8 C.F.R. 235.3(b)(4)(ii) (2002)
³⁴ 8 U.S.C. 1225(b)(1)(B), (C), (D) (1997)
³⁵ 8 U.S.C. 1229(a)(4) (1997 & Supp. 2002)
³⁶ 8 U.S.C. 1229(a)(4) (1997)
³⁷ 8 U.S.C. 1184(e)(1) (1997); 8 C.F.R. 214.6(a) (2002)
³⁸ 8 U.S.C. 1884(b) (1997 & Supp. 2002)
³⁹ 8 U.S.C. 1182(a)(7)(A) (1997)
⁴⁰ 8 U.S.C. 1225(b)(1)(A)( i ) (1997)
⁴¹ 8 U.S.C. 1182(a)(9)(A) (1997)

Our Firm | Practice Areas | Our Attorneys | Articles & Archives
Calendar of Events | Noteworthy Links To The Net
Past Events | Employment | Contact Us | Home