Sunday, January 5, 2014

Choosing Which Maze to Resolve: Comprehensive Immigration Reform, Current Immigration Law, Congress, and the Courts

Happy New Year! As the legislative session begins for the beginning of 2014, there has already been a great deal of discussion about Comprehensive Immigration Reform ("CIR") and the possibility that it may be passed this year. CIR is meant to resolve the maze in which current immigration law appears to leave the country, but obtaining the passage of CIR is a maze in itself. Although Republican John Boehner, the U.S. Congress's Speaker of the House of Representatives, has made clear his intention of moving forward with attempting to have CIR passed, whether CIR becomes a reality depends largely on internal Republican politics, as summarized below by Atlantic Media's Ronald Brownstein on NBC Los Angeles's News Conference:  
NBC Los Angeles's News Conference, January 5, 2014

As can be seen above, there is still a great deal of uncertainty as to whether CIR will actually move forward. Therefore, foreign nationals seeking resolution of their immigration matters continue to be limited to what current law allows. On New Year's Eve, the U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding immigration-court proceedings within certain Western states including California, Nevada, Arizona, and Washington, held in Li v. Holder that a single material and conscious falsehood in one part of an asylum applicant's testimony makes uncredible all of that applicant's testimony, thereby warranting an adverse-credibility finding that effectively renders an asylum application unapprovable.

The case concerns a Chinese-national woman who is of both Chinese and Korean descent and who sought but was denied asylum in the United States by both an Immigration Judge and later the BIA because of allegedly inconsistent testimony regarding only two parts of her overall asylum application, i.e., when she applied for and received her Chinese passport and for how long she participated in a Christian church, her following of which she claimed led in part to her being persecuted in China. Despite both the woman's and a dissenting judge's arguments to the contrary, the Ninth Circuit said the BIA was not wrong in using an adverse-credibility finding on one claim to support an adverse-credibility finding on another claim.

On the bright side, the same Ninth Circuit held a week earlier in Euceda Hernandez v. Holder that the BIA cannot reject on jurisdictional grounds a motion to reopen (or to reconsider) submitted to the BIA when such motion should have been filed with the relevant immigration court. A jurisdictional ground for dismissing a filing is based on a conclusion that the U.S. Congress did not give the authority to the rejecting body, in this case the BIA, to consider such filing. As with most if not all adjudicating bodies, the BIA has the authority to determine based on the laws passed by the U.S. Congress of the parameters of its jurisdiction, but the federal courts have the authority to decide whether such determination is correct.


In overturning the BIA's determination, the Ninth Circuit found that the BIA's erroneous rejection of a Honduran-national man's motion was based on the BIA's place-of-filing rule, which is only a claims-processing limitation as opposed to a legitimate jurisdictional limitation, meaning that the BIA could consider the merits of such a motion if it wished to do so rather than simply rejecting such motion under the guise that it is without authority from the U.S. Congress to give the motion any consideration.

The decision is unsurprising given the confusion in which current immigration law leaves many people regarding several issues including something that should be so simple as where to file a motion. As a result, the immigration-law maze continues into the New Year at least until, as Ronald Brownstein discusses in the above video, the Republicans can resolve their own internal maze in favor of passing CIR.

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