Sunday, April 20, 2014

Being Kept Out v. Being Trapped In: Enforcing the Immigration Laws in the Absence of Comprehensive Immigration Reform

This past week saw some activity on the issue of Comprehensive Immigration Reform ("CIR") but not on its passage. Instead, it appears that life without CIR is an idea that is becoming acceptable to those who previously championed it. The lack of a final resolution is the primary problem with the U.S. President and the U.S. Courts attempting to resolve immigration-related issues without participation by the U.S. Congress.

For example, news came out a few days ago that, largely due to a recent surge in the number of arriving aliens seeking protection here, U.S. Citizenship and Immigration Services ("USCIS"), which is a component of the U.S. Department of Homeland Security ("DHS") and which is responsible for conducting credible- and reasonable-fear interviews of those who arrive at a land, air, or sea port of entry to the U.S. and who claim to have a fear of returning to their home countries, will make it more difficult for such asylum seekers to establish the requisite fear that would permit them to pursue such fear-based applications formally. The result, other than more attempted unlawful entries, will be more people being returned to their home countries without the opportunity even to have their applications heard by an immigration judge. One hopes, particularly due to the lack of passage of CIR by the U.S. Congress, that this new level of discretion is exercised by USCIS officers in a uniform and fair manner.

Turning to the federal courts, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, held in He v. Holder that a Chinese man's compliance with the consequences of not abiding by China's one-child policy and, relatedly, his not being persecuted on account of his not abiding by it led to a finding that he did not have a well-founded fear of persecution should he be returned to China. While such a finding appears to be consistent with the shift in the USCIS policy toward making it more difficult for asylum seekers to establish the requisite fear required to be permitted to pursue asylum, the likelihood that the Chinese man in He will actually be deported any time soon is low. Instead, he has a high probability of simply remaining in the U.S. without authorization, trapped due to his unlawful status combined with his unwillingness to leave. The continuing presence in the U.S. of individuals with final removal orders that have already received federal-court review causes the entire immigration-related apparatus to appear impotent. However, without the passage of CIR by the U.S. Congress, this appearance will simply continue to exist.

The lack of resolution caused by the continued unwillingness of the U.S. Congress to pass CIR will only increase the fairness gap. Nevertheless, there are still some who keep fighting for CIR such as the young lady who last week revealed her undocumented status to former Senator Hillary Clinton:, April 17, 2014

Wednesday, April 16, 2014

As Usual, Court Holds Credibility is Key in Asylum Cases

Oftentimes foreign nationals seeking an attorney to assist in preparing and filing an asylum application worry about the perceived lack of evidence to support their claims. What such foreign nationals typically fail to realize is the overarching importance of their own testimony as a form of evidence. A tall stack of documents could potentially be of no value if the asylum applicant's credibility is in question.

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, reaffirmed this idea of the paramountcy of credibility in asylum applications. Issued on April 14, 2014, Jin v. Holder concerned a Chinese man who had applied for asylum in the U.S. based on his fear of being persecuted in his home country on account of his practice of Christianity.

However, after changing venue twice, once from California to Arizona and then from Arizona to Nevada, the man revealed during a hearing before the Las Vegas Immigration Court that the opportunity for a friendlier judge probably played more of a role in his seeking a change of venue than did his alleged changes of address.  While it is true that dramatic fluctuations among immigration courts and among immigration judges do exist regarding asylum-application approval rates, one's seeking a location for his/her immigration-court proceedings based on that location's track record for approving asylum applications is not permissible regardless of whether perceived as a reasonable strategy. Similarly, the man admitted that a certificate he had submitted to the Las Vegas Immigration Court from a church in Las Vegas, Nevada was not legitimate because he had not been attending that church given that he was residing in California.

Unsurprisingly, the immigration judge denied the man's asylum application, citing an adverse credibility determination, and the BIA upheld that determination on appeal. The Ninth Circuit found that substantial evidence supported the BIA's affirmation of the immigration judge's adverse-credibility determination. The Ninth Circuit held the same on April 16, 2014 in Carrion Garcia v. Holder.

Although the case does expose the incentive an asylum applicant has to forum shop based on the publicly available data regarding the aforementioned dramatic fluctuations in asylum-application approval rates among the various immigration courts and immigration judges, there appears to be very little likelihood that anything will be done to correct such a phenomenon because of the wide discretion immigration judges have in asylum-application adjudications and the unwillingness of the BIA to narrow such discretion. Consequently, while forum shopping is impermissible for legitimate reasons, the U.S. Department of Justice will continue to have difficulty in maintaining an appearance of such legitimacy of its immigration-court system.

Monday, April 7, 2014

Shooting Fish in a Barrel: Government and Courts Have Focused Immigration-Enforcement Efforts on the Easiest yet Least Threatening Targets

An article in today's New York Times shows that despite the talk of a more compassionate deportation policy the U.S. government's enforcement of the Immigration Laws has focused more on removing from the U.S. individuals who do not pose a threat. One of the results of such rigid enforcement policies is the tremendous increase in illegal-reentry and in reinstatement cases regarding foreign nationals who return to the U.S. following a removal oftentimes to reunite with U.S.-citizen family members who are already in the U.S. When someone has already been deported, his/her returning to the U.S. without authorization may result in his/her being prosecuted in federal criminal court for the crime of illegal reentry. Prosecuting an illegal-reentry case is relatively not difficult because it is a strict-liability crime, meaning the intent or motive of the foreign national is of no consequence. Moreover, whether or not any illegal-reentry prosecution occurs, the foreign national may be removed again not pursuant to a new removal order but rather pursuant to reinstatement of the original removal order, thereby bypassing the normal procedural safeguards afforded in most removal scenarios. Unsurprisingly, with the increase of illegal-reentry prosecutions and of reinstatements, there have been more court challenges to the validity of these tools used by the U.S. government.

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from U.S. District Courts in the Western States as well as petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal and reinstatement proceedings conducted within those same Western States, issued three decisions recently regarding foreign nationals who had already once been deported from the U.S. and who either were facing illegal-reentry prosecution or reinstatement of the previously issued removal order. In USA v. Lopez, the Ninth Circuit found at the beginning of this month that a foreign-national criminal defendant was properly convicted of illegal reentry despite the U.S. government's failure to produce evidence that he was actually previously ordered removed. The Ninth Circuit found that evidence of the removal itself, and not necessarily in combination with actual evidence of a removal order, is all that needs to be produced for one to be found guilty of illegal reentry.

Also regarding an illegal-reentry prosecution, USA v. Hernandez-Arias, issued last month by the Ninth Circuit, surprisingly held that a foreign national's underlying removal order was valid, and therefore could form the basis for his prosecution given that he illegally reentered after its execution, even though it was based on an allegation that he had never been admitted or paroled to the U.S. despite his previously being granted temporary resident status. Although ultimately terminated, the foreign national's grant of temporary resident status still would be nevertheless accepted by many as evidence of an admission. The Ninth Circuit at least attempted, although in faulty analysis, to reconcile the seemingly unlawfully issued removal order with its holding by finding that the termination of the foreign national's temporary resident status amounted to reversing his admission, in much the same manner a revocation, which is separate and distinct from a termination, would have. It will be interesting to see whether the decision will be overturned.

Turning to reinstatement, the Ninth Circuit held at the very end of last month in Ortega v. Holder that simply having available before the effectiveness in 1997 of the U.S. Congress's passage of the current reinstatement provision, but not taking until after such effectiveness any meaningful action toward pursuing, a form of relief from reinstatement does not in any way bar a reinstatement of a previous removal order. It is unclear how the foreign national could have been permitted actually to pursue such relief before being placed in reinstatement proceedings, which may have been necessary for there to be jurisdiction over his application, but the Ninth Circuit did not concern itself with such a practical issue. What these three decisions show is how the U.S. government's actual aggressive policy of enforcing the Immigration Laws against relatively nonthreatening foreign nationals is buttressed by the federal court's unwillingness to find fault with clear flaws in such enforcement.

In contrast, the Ninth Circuit held in Ceron v. Holder at the very end of last month that a foreign national convicted of assault with a deadly weapon other than a firearm may not have been convicted categorically of what's known in the Immigration Laws as a crime involving moral turpitude ("CIMT") that would result in a ground for removal. Consequently, the Ninth Circuit remanded the matter to the BIA to decide on the issue. While protection of dangerous criminals may not have been the intention of the Ninth Circuit, these recent decisions combined with the information found in the New York Times article published today show that such is the result and that foreign nationals with immigration-related issues need to stop hoping for Comprehensive Immigration Reform ("CIR") and need to start dealing with the reality of their cases.