Sunday, October 19, 2014

Summer of Discontent: Reversing Course in Immigration Policy and Immigration Law

by Anish Vashistha

It's been three months since my last post because I was hoping to have some big news to present before writing again. However, unfortunately, the only big news is that there is no big news and here's how the President laid out why not:

NBC's Meet the Press, September 7, 2014

The President has not been the only one who has been backpedaling but trying to justify the reversal. Since my last posting, there have been a few similar cases of wavering but instead by 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.

First, in Juarez Alvarado v. Holder, the Ninth Circuit in July of this year refused to review a Mexican man's unexhausted argument relating to overbreadth of a State controlled-substances statute and found that the man's conviction amounted to an immigration-related controlled-substances violation despite the State statute listing more controlled substances than found on the federal controlled-substances schedules. Instead of dealing with the specific and tough issue of whether the State statute under which the man was convicted should be found to criminalize more behavior than what federal immigration law deems a violation, the Ninth Circuit found a way to avoid it altogether by arguing that the man did not raise the issue first before the BIA, which last month took matters into its own hands by holding in the separate case of Matter of Ferreira that in such situations there must be a realistic probability that one actually could be prosecuted under a State controlled-substances statute for engaging in activity relating to the very controlled substances that are listed in the State statute but not within the federal schedules. This "realistic probably" requirement interpreted by the BIA to be a part of the necessary analysis unfortunately places more of a burden on a foreign national who is contesting removability.

Also in July of this year, the Ninth Circuit held in U.S. v. Valdez Novoa that a Mexican man could not avoid being prosecuted for illegal reentry after deportation based on an alleged due-process violation in his underlying removal proceedings because such allegation was found by Ninth Circuit not to be true. That alleged violation was based on the subsequent reversal of a case decision on which the relevant immigration judge relied in ruling that the man's prior criminal conviction was an Aggravated Felony and consequently that he should be removed from the U.S. The Ninth Circuit found that the relevant immigration judge did not violate the man's right to due process because the immigration judge's reliance on the case law that existed at the time of his ruling was reasonable. It is questionable how someone's removal order could be found valid if the very analysis on which it is based has subsequently been overturned, but the Ninth Circuit probably was trying to avoid establishing a rule that would permit possibly thousands of deported individuals who have illegally reentered the U.S. to avoid prosecution.

Moving to August of this year, the Ninth Circuit ruled in U.S. v. Hernandez-Arias, a case in which there has been a previous ruling and about which I had previously written because of my concern on the possibility for a slippery slope, held that its prior decision, which many would argue is unjustified, still stands but only in the specific context of someone having been granted temporary-resident status.

While there have been several more cases since my last posting, and I will get to them in my coming postings, the ones discussed above show that reversing course relating to immigration is something that can be done by both the executive and the judicial branches of government and just as (in)artfully.

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