Sunday, July 20, 2014

Tug of War: Using Any Event to Back One's Position on Comprehensive Immigration Reform

by Anish Vashistha

It has been more than a month since my last post, but the debate on Comprehensive Immigration Reform ("CIR") has continued, albeit with a certain twist pertaining to the tens of thousands of unaccompanied minors from Guatemala, El Salvador, and Honduras. Here is what Jeh Johnson, Secretary of the U.S. Department of Homeland Security ("DHS"), had to say about the subject a couple of weeks ago:

NBC's Meet the Press, July 6, 2014

Here's what Republican Congressman Raul Labrador said in response:
NBC's Meet the Press, July 6, 2014 

Here's how various political observers view the CIR debate in relation to the issue of unaccompanied minors:
NBC's Meet the Press, July 6, 2014

Both sides appear to be using the unaccompanied-minors issue to support their respective positions regarding CIR, and the political observers are following suit.

I believe for three reasons that CIR is unrelated to the recent tremendous increase of unaccompanied minors attempting to enter the U.S. First, despite the large supply, there is simply no demand for unaccompanied minors in particular as there is for the type of labor force in general that CIR would assist the U.S. in acquiring. Second, the unaccompanied-minors issue can be handled quickly and effectively once it is proven that one cannot obtain a permanent home in the U.S. simply by making the journey to the U.S. Of course, proving such a reality would require expediting the process for disposing of the unaccompanied minors' cases. While there are options for unaccompanied minors to obtain permanent lawful status in the U.S., such as asylum and special-immigrant-juvenile ("SIJ") status, such options have strict eligibility requirements that many of the recent unaccompanied minors simply will not be able or even be willing to prove. Third, and related to the first two reasons, there simply is no policy that would be supported by allowing otherwise ineligible unaccompanied minors to remain permanently in the U.S. While family unification is a U.S.-immigration-related policy, such a policy does not support the unification within the U.S. of members of a family in which all are undocumented. CIR presumably would help such individuals but only if they could prove that they had entered the U.S. by a certain date that has long since passed. It likely would not help the recent spate of unaccompanied minors.

If compassion is the sole basis for one's claim that the unaccompanied minors should be permitted to remain permanently in the U.S., then such compassion should be expressed in two ways: (1) assisting in changing the environment in the countries from which the unaccompanied minors traveled so that their obstacle-ridden migration is no longer, at least in their and their parents' minds, required and (2) allowing for effective legal representation for such unaccompanied minors so that they may use the system in place, rather than attempting to override it, to accomplish their goal of obtaining a permanent home in the U.S.

However, regarding the second way, as shown by recent immigration-related decisions, even effective legal representation is not enough to obtain a favorable outcome. For instance, and related to the issue of minors, the U.S. Supreme Court in Scialabba v. Cuellar de Osorio sided last month with DHS in holding that immigrant-petition derivative beneficiaries, e.g., the children of foreign nationals who have had filed for them an immigrant petition that would automatically include their children, who are unable to accompany their immigrating parents because they have aged out, i.e., reached twenty-one years of age for immigration purposes prior to being permitted to apply for adjustment of status or an immigrant visa, due to years-long quota-based wait times cannot maintain the same filing date, otherwise known as priority date, as the original petitions filed for their parents after their parents, who have successfully lawfully immigrated, subsequently file petitions for them, resulting in yet another years-long quota-based wait for the aged-out derivative beneficiaries.

Also last month, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, ruled in Jiang v. Holder that an immigration judge's adverse-credibility finding relating to an asylum applicant was justified given the Chinese-national applicant's not raising in her testimony only until prompted by her attorney the physical abuse that she suffered in detention in China and that made up a substantial portion of her claim as outlined in her previously submitted declaration.

Moreover, the Ninth Circuit ruled this month in Bojnoordi v. Holder that the terrorism bar to asylum applies retroactively, thereby including activity that occurred even prior to the official designation of a certain group as a terrorist organization. Also this month, the Ninth Circuit held in Coronado v. Holder that a California methamphetamine-possession conviction could be used to establish a controlled-substances-related ground for removability because California's controlled-substances-possession statutory criminal offense is not overbroad but rather divisible.

However, and in what appears as a contradiction to Coronado, at least one recent case shows that effective legal representation does make a difference. In USA v. Aguilera-Rios, the Ninth Circuit reversed a Mexican man's conviction for illegal reentry because his prior removal was unlawfully based on a California firearms-possession conviction that the Ninth Circuit ruled could not be an immigration-related aggravated felony because California's firearms-possession statutory criminal offense was indeed overbroad for not having an antique-firearms exception as found in the generic federal firearms-possession statutory criminal offense.

The confusion over whether one's state conviction is under an overbroad statute as opposed to a divisible statute is part of the reason why CIR is required because it represents an uncertain legal issue that the courts have simply been unable to clarify. The tens of thousands of unaccompanied minors who have recently sought a permanent refuge in the U.S. is neither a reason to support CIR nor a reason to oppose CIR. It may be an enforcement-related- or resources-related issue, but the law now in existence provides a clear avenue for disposing of such cases. Using the unaccompanied-minors issue as a tool in the overall CIR debate is a distraction in the continuing tug-of-war that is CIR.