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Learning the System: Basic Immigration Concepts
Immigration Law
The Immigration and Nationality Act (INA) contains most of the United States' immigration laws.
Noncitizen
"Noncitizen" means any person in the United States who is not a US citizen, whether the person has legal immigration documents or not. Noncitizens are often called "aliens."
Undocumented Persons
Undocumented persons are noncitizens who either entered the US without government permission or whose legal immigration documents have expired. These people are often called "illegal aliens," although simply being in the US without documents is not a crime.
Lawful Permanent Residents (LPRs)
Most people gain lawful permanent residence (i.e. get their "green card") in the United States via family or employment. A smaller number gains lawful permanent residence through other forms of immigration such as asylum, refugee processing, cancellation of removal, legalization, lottery, or country-specific laws. The application form filed by a family member or an employer on behalf of a noncitizen who wishes to immigrate to the United States is called an "immigrant visa petition" or, for short, a "petition." The term "noncitizen" includes LPRs.
Non-immigrants
Other noncitizens, known as "non-immigrants," may come to the United States temporarily, to visit, study, or work.
Visa
A visa is a document the US gives to a noncitizen to enter the United States. A person may get a visa from DHS or from a US consular official in another country. Visas for people who are in the US temporarily are called non-immigrant visas. Visas for people who plan to stay in the US are called immigrant visas. Most people with immigrant visas should eventually get a card that identifies their immigration status as a lawful permanent resident.
The Department of Homeland Security (DHS)
DHS enforces the US immigration laws. It has offices all over the country. DHS handles immigration applications of all kinds, including those for citizenship, lawful permanent residence, immigrant visas, extension of visas, plus many more. It also has the power to remove (formerly "exclude" and "deport") noncitizens from the United States. DHS agents have police-like power to detain, search, question, and arrest people who it suspects may have violated the immigration laws. Agents may use information they discover about a noncitizen as evidence to remove the noncitizen, in some cases without giving the noncitizen a chance to make his or her case at a hearing in front of a judge.
Consular Officers
Consular officers at US embassies abroad grant and deny requests for immigrant and non-immigrant visas. They are part of the US Department of State. They have an enormous amount of discretion in making their decisions and no court in the US may review their decisions, except in very unusual circumstances.
Removal (formerly called Exclusion and Deportation)
Removal is the process by which DHS stops noncitizens from entering or staying in the United States. DHS may prevent noncitizens from entering the US if they find they are "inadmissible," as defined by the immigration statute. The rules on inadmissibility also apply to people who seek lawful permanent residence and DHS may prevent the noncitizen from getting that immigration status. DHS can also remove people it finds in the US. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, undocumented noncitizens inside the US now can be removed for being "inadmissible" or "deportable." The rules on deportability are somewhat different than the rules on inadmissibility.
Being HIV positive is a ground of inadmissibility. Therefore, noncitizens with HIV/AIDS can be prevented from entering the United States, from getting lawful permanent residence, and may be "removed" from the United States if they entered without government permission. In practice, however, since DHS can remove people for entering the US without permission, it is more likely that HIV positive noncitizens in this category will be removed primarily for that reason. Some HIV positive noncitizens may be able to ask an immigration judge for a status such as asylum, which overrides the HIV ground of inadmissibility.
Expedited Removal
Low-level immigration officers may remove many noncitizens encountered at a border or port of entry without a hearing with an immigration judge. This is called "expedited removal." Being HIV positive is not one of the reasons for summarily removing noncitizens. Nevertheless, the government may swiftly remove many HIV positive noncitizens for other reasons, such as not having proper documents. It is extremely important that noncitizens understand their rights and be prepared to assert them if arrested by DHS. See Being Prepared for more information.
Immigration Proceedings
All noncitizens inside the US have the right to an immigration hearing. It is important for noncitizens arrested by DHS to assert their right to a hearing because immigration proceedings are like trials. An immigration judge presides over the hearing, a government attorney represents DHS, and the noncitizen has the right to a lawyer, although not at the government's expense. Some trial rules about evidence and procedure apply in immigration proceedings. The Board of Immigration Appeals (BIA) reviews all appeals of an immigration judge's decisions. The federal courts have some power to review BIA decisions.
Discretion
DHS officers and immigration judges often have a great deal of discretion in making their decisions. This means that they can consider different factors in making their decisions and must personally evaluate how important each factor is. Cancellation of removal and asylum are examples of "discretionary" decisions. It is sometimes very difficult to convince the BIA or a federal court to overturn a discretionary decision by a judge or DHS officer.
Waiver
There are two very different kinds of waivers. Noncitizens may "waive" their rights when they sign forms that admit to certain truths. This is why noncitizens should refuse to sign anything before talking to an immigration advocate. DHS also may "waive" some of the rules on inadmissibility and deportability, in favor of the noncitizen. For instance, there are several waivers for the HIV ground of inadmissibility, depending on the immigration status of the applicant. Generally, noncitizens have to ask for these waivers from the DHS officer or the immigration judge deciding their case.
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