Wednesday, October 23, 2013

Knowing the Path v. Walking the Path: Getting the Votes for Comprehensive Immigration Reform

One can easily determine by simply following the news where the weaknesses in the existing immigration-law framework exist, but addressing those weaknesses has proven far easier said than done. Less than a month into the current fiscal year and already the cap for Cancellation of Removal & Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") has been met. The current fiscal year runs from October 1, 2013 to September 30, 2014. The United States Congress has allowed for only 4,000 of such applications to be granted nationwide per fiscal year. While many people are aware of the H-1B temporary-worker cap and how quickly it is met each fiscal year, far fewer are probably aware of the Non-LPR Cancellation cap or even of what Non-LPR Cancellation is. Eligibility for Non-LPR Cancellation typically requires that a person be residing continuously in the United States for at least ten years prior to having been placed in removal proceedings, that the person have had good moral character during that period and up until the grant of the Non-LPR Cancellation application, and that the person have a qualifying United-States-citizen or Green-Card-holding relative, such as a spouse, child, or parent, who would suffer exceptional and extremely unusual hardship were the Non-LPR Cancellation application not granted.

For many undocumented individuals who entered the United States without inspection and who do not qualify for any previously passed amnesty provision, Non-LPR Cancellation appears to be the only way to resolve their immigration matters. Moreover, such individuals are only eligible for Non-LPR Cancellation if they can prove the requisite hardship to the qualifying United-States-citizen or Green-Card-holding relative, i.e., the very people the United States Congress was trying to protect when it passed Non-LPR Cancellation. In fiscal years past when the cap was met, Immigration Courts would continue the individual-merits hearings for Non-LPR-Cancellation applicants until the beginning of the following fiscal year. However, with more pressure on Immigration Courts to resolve removal cases more quickly, immigration judges have shifted course and instead have conducted the hearings on the applications sooner but have withheld a final decision on the Non-LPR-Cancellation applications until the beginning of the following fiscal year. The result, as can be seen in the first month of the current fiscal year, is the cap being met in a matter of weeks because of issuance of approvals for applications that were heard during the last fiscal year.

I have written previously about how the political environment is ripe for both political parties in the United States Congress to try to pass, and consequently to try to take credit for, Comprehensive Immigration Reform ("CIR"). As David Brook, Andrea Mitchell, David Gregory, and E.J. Dionne reference below, it is in President Barack Obama's and the Republicans' interests both substantively and politically to push right now for CIR:

NBC's Meet the Press, October 20, 2013
In the meanwhile, it appears for now that the federal courts, as opposed to the United States Congress, will continue to try to clarify on a large scale, rather than on an individual scale, which people are of the type the United States wants to help remain in the country and which are not. The United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which hears petitions for review from decisions of the Board of Immigration Appeals regarding removal proceedings that have taken place in states such as California, Nevada, Arizona, and Washington, held yesterday that molestation of a fourteen-year-old or fifteen-year-old child by someone at least ten years older than the child categorically is a crime of violence and therefore an aggravated felony barring the perpetrator, if not a United-States citizen, from almost all forms of immigration-related relief, including Non-LPR Cancellation. The decision, Rodriguez-Castellon v. Holder, leaves no room for maneuvering by someone convicted of such an offense to avoid the dreaded aggravated-felon bar in immigration law, leaving such a person to turn to extraordinary and relatively unknown forms of immigration-related relief to resolve his/her immigration matter. It appears that the Ninth Circuit both knows the path and is walking the path. Whether the United States Congress will do the same is yet to be seen, but any more waiting only makes it less likely.

Wednesday, October 16, 2013

Discovering a Post-Shutdown Path to Comprehensive Immigration Reform

At the beginning of this week, the United States celebrated its having been discovered by Europeans more than 521 years ago. Half way through this week, the Members of the United States Congress discovered a way to end the government shutdown and to raise the nation's debt ceiling, thereby avoiding a potential default on the government's loans. Christopher Colombus had to endure the potential threat of being killed by his own crew of the three ships he led across the Atlantic Ocean before seeing on the horizon the islands of the West Indies. Similarly, the end of the shutdown came about despite opposition by a majority of the controlling political party in the United States House of Representatives because the Speaker of that chamber allowed a pre-negotiated deal to come to a vote. As Colombus proved there is no ocean edge over which his ships would fall, Speaker John Boehner proved that he would not permit the government to fall off the fiscal cliff. Colombus rewarded his patrons with the riches of the New World. Now Boehner must reward his supporters by leading his political party out of the figurative hole in which it finds itself as a result of its receiving the lion's share of the blame for the shutdown.

That way out could be to bring quickly the Senate's passed Comprehensive-Immigration-Reform ("CIR") bill to a vote on the floor of the United States House of Representatives. Leading the way in finally passing CIR would provide the Republicans the rehabilitation their brand desperately needs at this time, and Boehner would be wise to take the opportunity immediately rather than allowing it to slip away. By permitting his fellow party members to use the shutdown and debt ceiling as leverage to attempt both to reduce spending and even to defund ObamaCare, Boehner confirmed his conservative credentials and party loyalty despite the strategy's failing. By recognizing before it was too late the reality that that attempt had failed and by bringing the deal brokered in the United States Senate to a vote in the United States House of Representatives, Boehner proved his love for country and consequently drew influence away from the most conservative members of his political party and consolidated it within his office.

Now Boehner can end the popularity-rating free fall his political party is suffering and can therefore be a Republican hero by bringing the Senate's CIR bill to a vote on the floor of the United States House of Representatives. Regardless of political affiliation, one can easily see that the Republicans are in dire need of a boost in popularity, and no issue is better suited to provide that boost than CIR. I had written earlier that it appeared that CIR was already dead, but the current political climate is ripe for it to be passed if passed quickly. Moreover, the news from earlier this week that detention of immigrants is apparently quota-based rather than safety-based provides yet another example of how the current immigration system in the United States could be made better.

If he takes advantage of such a climate, Speaker Boehner's biggest problem will not be the tea-party Republicans, from whom most of the country no longer wants to hear for the time being, but rather the White House's attempts to take credit for what he effectively would have made possible:

Nevertheless, such a battle over who should receive credit for CIR, unlike the government-shutdown and debt-ceiling battles, could actually be won by the Republicans but only if Boehner moves quickly to bring CIR to the floor of the United States House of Representatives for a vote.

Wednesday, October 9, 2013

Continuing Shutdown Negatively Affects Immigration-Related Services

Although there appears to be some light at the end of the tunnel, the continuing Government shutdown is negatively affecting both deportation-related and benefits-related immigration services. Here are the Immigration-Court and Social-Security-Administration informational links I promise in the below video:

Monday, October 7, 2013

Pride Without Prejudice: New Decision Reduces Ability for Immigrants to be Made Whole Following Violation of Rights

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It appears the federal courts are trying to follow the recent dichotomy that has arisen in the news. For instance, the federal government remains shut down due to the inability of the two parties and the two chambers of the United States Congress to agree on a budget. However, ObamaCare continues to move forward.  Moreover, over the weekend, United States Special Forces engaged in special operations to capture alleged terrorist operatives, but while the operation in Libya was successful, the operation in Somalia was not. The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), the western federal appeals court that hears appeals from various federal district courts within its jurisdiction and that hears petitions for review of final orders of removal by the Board of Immigration Appeals regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, now has entered this developing yin-yang fray by issuing today a decision that at first appears to contradict itself.


The decision, United States v. Gomez, concerned a Mexican-citizen man who had been physically deported from the United States on January 20, 2006 because of his not having lawful status in the United States at the time. Although the man also had a couple of criminal convictions, United States Immigration and Customs Enforcement (“ICE”) removed any reference of those in the charging documents it brought against the man to seek his removal from the United States, something that is not unusual when someone is removable anyway regardless of his/her criminal history. The man requested that he see an immigration judge but then subsequently, and according to him without his full knowledge, signed a waiver of rights and agreement to be deported. The man then returned to the United States after having been deported and was located by ICE following his being arrested for yet another criminal matter.

ICE then brought federal criminal charges against the man for illegally reentering the United States after deportation. In federal district court, the Mexican-citizen man argued that he could not be convicted for illegally reentering after deportation because one of the requirements for such a conviction is his having been previously and validly ordered removed. The man’s reasoning was that his removal order was not validly issued because it resulted from a violation of his rights, including his right to see an immigration judge and his right to appeal his removal order. While the federal district court did not agree with the man, the Ninth Circuit on appeal did, at least in part. The Ninth Circuit found that the actions taken by ICE, i.e., first receiving from the man a request to see an immigration judge as was his right but then having him sign a waiver of that right despite his initial request, amounted to the previous removal order’s being invalid.

Nevertheless, and this is the part that continues the pattern of binary events, the Ninth Circuit still upheld the denial of the man’s motion to dismiss the criminal proceeding against him because the violation that led to his previous removal order did not prejudice him, meaning he would have been ordered removed anyway even had he been permitted to see an immigration judge and had he been permitted to appeal his removal order. The case is a classic example of harmless error, i.e., ICE did the man wrong but the end result would have been the same had ICE done the man right. Some would find that such a decision only incentivizes ICE to trample people’s rights in similar situations, but others would find that the decision’s reasoning is an efficient of way of dealing with harmless-error due-process issues. Either way, the decision shows that a simple violation of one’s rights will not pave a way to victory. Victory in immigration cases requires a great deal of effort and precision, and although it may hurt one’s pride to do so, seeking expert assistance may be the only way to achieve it.

Friday, October 4, 2013

Impact of ObamaCare & California Driving Privileges on Immigrants

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This week saw the beginning of the individual-enrollment period for the Patient Patient and Affordable Care Act ("ObamaCare"). It also saw the passage in California of a law that would allow undocumented immigrants to receive driving privileges.  How these two developments affect immigrants is yet to be seen, but it's not as simple as some would suggest.

For instance, undocumented individuals, or unlawfully present immigrants as they are also called, already do not qualify for Medicaid, which is expanded by ObamaCare. They also would not qualify for subsidized medical insurance that could be provided to them through each individual state's insurance exchange. However, ironically, ObamaCare specifically exempts such individuals also from the tax the U.S. Supreme Court earlier this year found could be levied against those who do not comply with ObamaCare's individual mandate. While some unlawfully present individuals may rejoice by their ability to avoid that tax, others are hurt by the inability to receive subsidized medical insurance. Resolving one's immigration situation would enable such persons to be eligible for subsidized medical insurance and perhaps ultimately Medicaid altogether.

Regarding the passage in California of AB-60, the legislative bill that would extend driving privileges to undocumented immigrants, it is important to note, first, that the law will not go into effect probably until the end of 2014 because of the time it will take for the changes to be implemented and, second, that the driving-privileges cards issued will be different from driver's licenses. Therefore, in a way, once the new cards are finally issued, they will differentiate the cardholder immediately from regular driver-license holders. Exposing one's unlawful presence in such a clear way may not be acceptable to certain undocumented immigrants, and it will be a subject of debate how clear that differentiation will be made.

The below video also discusses the two recent events while ending with a summary of the current status of the Government shutdown and its effect on immigration-related services: