Sunday, November 23, 2014

Not with a Bang But with a Whimper: Incomprehensive Immigration Reform is Issued

by Anish Vashistha

In case you did not hear, U.S. President Barack Obama announced last Thursday evening a series of Executive Actions relating to Immigration:
U.S. President Barack Obama, November 20, 2014

Moreover, it appears that Comprehensive Immigration Reform ("CIR") is more about politics and not so much policy as shown by the below discussion on Meet the Press relating to how Republicans and Democrats respond to the same proposal on the issue based on the political party that is in the White House:
NBC's Meet the Press, November 23, 2014

For that reason, and although I am no fortune teller, I do not believe that the reforms that the President instituted will evaporate should a Republican be elected in 2016 to the presidency.  The U.S. may be polarized politically but is still not anti-immigrant, so the political issue, is simply based on who can take credit for CIR.  Also, while I have still not taken a position as to whether the President's Executive Actions are good for the country, something I would do only after seeing how they are actually executed, I do want to point out the flaw in the argument that they amount to selective enforcement and consequently are bad.

The flaw is not simply the response that all laws are selectively enforced, e.g., every time that one commits a traffic violation and is not cited for it s/he is a beneficiary of selective enforcement, but is rather the misperception that specifically the Immigration Laws were not selectively enforced previously.  Targeting  foreign nationals that are the easiest to apprehend for removal, namely, those with families, steady employment, and other ties to the community, i.e., people who are loyal to something other than to themselves, rather than the most dangerous or egregious immigration-law violators such as violent criminals is a form of selective enforcement as well and has largely been the approach to enforcement of the Immigration Laws for most of the last several years.  A reapportionment of available enforcement resources, as the President has proposed, does not imply that the preexisting status quo also was not a conscious apportionment of those same resources.  The wisdom of apportionment decisions should be reviewed frequently with necessary changes instituted intermittently.

Of course, this argument will likely be lost on many, and the debate will continue to focus on the President's power rather than on how such finite resources should properly be apportioned.  As I stated last week, I believe neither of these concerns deal with the actual issue underlying CIR, but I do not believe anyone other than me is interested in having that discussion.  Instead, most of my readers are probably interested in learning how one can benefit from the newly announced Executive Actions.  The links in the previous sentence should provide the most up-to-date information regarding eligibility.

One of the other interesting elements, and quite possibly yet another controversial decision, within the President's Executive Actions is the ending of the Secure Communities program.  The program has already recently led to several counties' ending their agreements with Immigration and Customs Enforcement ("ICE"), a sub-agency of the U.S. Department of Homeland Security ("DHS"), because of the potential financial liability cooperating counties face for holding criminal inmates beyond their respective criminal sentences.  The ending of the program may also be a way of protecting from financial liability ICE's own employees, a federal lawsuit against two of whom 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, found last month in Mendia v. Garcia is permitted to move forward.

That was not the only decision that was issued in October 2014 by the Ninth Circuit and that sided with a foreign national.  In Aragon-Salazar v. Holder, the Ninth Circuit held that the seven-year period or required good moral character regarding an application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA") ends on the date the application was filed and therefore does not permit inclusion within the relevant analysis of any facts that arise after such filing but before adjudication of a relevant application.

Also, returning to Medina-Lara v. Holder, a case about which I have written previously, the Ninth Circuit withdrew its September 2014 decision and issued a new opinion that has the same result as the prior decision, thereby reaffirming that a drug-related conviction that does not list the name of the drug involved cannot be used to support removability.

The October 2014 immigration-related Ninth-Circuit decisions were not all positive for foreign nationals.  For instance, in Hernandez de Martinez v. Holder, the Ninth Circuit unsurprisingly found that a conviction for criminal impersonation by assuming a false identity with intent to defraud is categorically a Crime Involving Moral Turpitude, thereby rendering the Mexican woman in that case ineligible for an application for cancellation of removal.  The case follows the pattern, which was interrupted only recently within the last couple of years, of foreign nationals' suffering from the language of the statute under which they were convicted rather than from the actual activity in which they engaged.  Similarly, in Espino-Castillo v. Holder, the Ninth Circuit clarified that a conviction that includes fraud as a necessary element of the underlying crime is categorically a Crime Involving Moral Turpitude.

Finally, the Ninth Circuit in Padilla-Martinez v. Holder gave the BIA and DHS wide latitude to provide ICE an opportunity to prove a controlled-substance-trafficking Aggravated-Felony allegation against a Mexican man.  Such latitude afforded the BIA and DHS in Padilla-Martinez and the lack of latitude afforded them in Medina-Lara seem to form the bookends of this issue.

On the contrary, the bookends in the CIR debate are not as clear, but until the debate actually happens, we simply will not know what they are.

Monday, November 17, 2014

Immigration Debate Heats Up as President Moves Toward Announcing Comprehensive Immigration Reform

by Anish Vashistha

Comprehensive Immigration Reform ("CIR") for the longest time appeared simply to be a dream, but U.S. President Barack Obama is extremely close to announcing some form of it soon.  The fact that the crossings by unaccompanied minors have declined, something that I previously predicted, should give the President some momentum and may vindicate him for not announcing his plans sooner.  Nevertheless, the President's prospective announcement of executive action regarding CIR seems to be exactly the pretext the Republicans in the U.S. Congress need to substantiate their opposition to CIR, as NBC's Chris Matthews discusses below:
NBC's Meet the Press, November 16, 2014

I believe the real debate underlying CIR concerns the shifting demographics of the U.S. and the unwillingness, whether justified or unjustified, of the racially dominant group(s) in the U.S. to relinquish their political power.  It is a debate I believe is worth having, but one that I feel will not occur, so the superficial nature of the conversation, e.g., border security, enforcement, etc., bores me.

What does not bore me however are the published decisions in the month of September 2014 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 Roman-Suaste v. Holder, the Ninth Circuit unsurprisingly concluded that a California conviction for possession of a controlled substance for sale is categorically an Aggravated Felony under U.S. Immigration Law, thereby barring the Mexican man in that case from all forms of discretionary relief. 

Nonetheless, in Medina-Lara v. Holder, the Ninth Circuit not only saved from deportation a different Mexican man who had also been convicted of possession for sale but also refused to give another opportunity to the U.S. Department of Homeland Security ("DHS") to meet its burden of proof.  The difference between Medina-Lara and Roman-Suaste was the inability of DHS to prove what actual drug the foreign national was possessing to sell in Medina-Lara.  That inability makes all the difference in whether a foreign national is removable without eligibility for any form of discretionary relief or a foreign national is not removable at all.

Returning to USA v. Aguilera-Rios, a case about which I have previously written, the Ninth Circuit issued a superseding amended opinion clarifying that a Mexican man had not waived his right to raise an argument only after his illegal-reentry criminal conviction was already issued against him and that such argument correctly showed that the man's underlying removal order was defective, thereby rendering his conviction for illegal reentry after removal defective.

Not to be so easily typecast as taking certain determinations out of the hands of the BIA and immigration judges, the Ninth Circuit in Torres-Valdivias v. Holder maintained that it does not have the authority to review the discretionary determination of whether a certain conviction, even if in and of itself does not trigger a statutory bar to a discretionary form of relief, nevertheless requires a foreign national to meet a higher standard to be granted such discretionary relief.

Moving on, the Ninth Circuit in Sandoval-Gomez v. Holder found that a Mexican man who had been convicted of attempted arson in California was correctly determined to have been convicted under the modified categorical approach of an Aggravated Felony under U.S. Immigration Law.

In a different type of case relating to whether or not a Guatemalan woman had been properly apprised of her removal proceedings when a U.S. Immigration Officer had typed an incorrect address on the Notice to Appear issued to her personally, the Ninth Circuit held in Velasquez-Escovar v. Holder that DHS had failed to give proper notice to the woman.  The case is notable for the below conclusion by the Ninth Circuit:

Although we hold that Velasquez was entitled to notice, we understand why the [Immigration Judge], the BIA, and [DHS] pressed the opposite result.  What makes that result so attractive is that it would have been so easy for Velasquez to notice the error on the NTA and so easy for her to correct it.  A little diligence and common sense on her part could have avoided this appeal.  But neither diligence nor common sense are notice.  Notice is notice.  And, under the circumstances here, Velasquez was entitled to notice.

What the Ninth Circuit avoids discussing is the likelihood of the woman's purposely avoiding correcting her address with the intent of evading notice, but that discussion is buried under pretextual arguments with the Ninth Circuit only referencing common sense as dicta.  This seems as good of a time as any for some common sense to be exercised in Washington, DC regarding CIR, but as with Velasquez-Escovar, the real debate is being buried under pretext.

Monday, November 10, 2014

No Hope But Lots of Change: Moving Forward on Immigration Reform with Republican Majorities in Both Chambers of Congress

by Anish Vashistha

The election was less than a week ago, and already many are trying to use the results to argue that Comprehensive Immigration Reform ("CIR") now has a real chance of being passed because Republicans will be able to take credit for it. Despite such optimism, the contrary argument made by Raphael Sonenshein in the final two-and-a-half minutes of the below video is more likely the reality:
NBC's News Conference, November 9, 2014 (start watching from the 8:17 mark)

Indeed, while President Barack Obama is still taking the position that he will implement CIR via executive order, the Republicans in the U.S. Congress continue to state that such unilateral action by the President will have severe political consequences.  The President's taking executive action before the end of this year may not appear as a rush because CIR has been debated for years, but the move will nonetheless appear hasty in light of an incoming Republican majority early next year.

Also rushed will be the below rundown of some of the latest published decisions 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 Nguyen v. Holder, the Ninth Circuit in August of this year found that a Vietnamese man did commit what is termed a Crime Involving Moral Turpitude when he misused a passport to facilitate international terrorism but nevertheless ordered the BIA to grant him deferral of removal under the Convention Against Torture because of the likelihood of his being tortured by the Vietnamese government upon his deportation.

Also in August of this year, the Ninth Circuit in Brown v. Holder found that an Indian man has a Constitutional right to U.S. citizenship as a means of avoiding deportation if he could show that the former Immigration and Naturalization Services ("INS") either arbitrarily and intentionally obstructed his naturalization application or that INS was deliberately indifferent to whether his application was processed.

Remaining in August of this year, the Ninth Circuit held in Lai v. Holder that a Chinese man's raising of information, which was not inconsistent to information he previously provided, for the first time only during cross-examination regarding his asylum application could not be subjected to an adverse credibility finding.

Finally, and finishing off the cases for August 2014 and thereby leaving subsequent cases to subsequent posts, the Ninth Circuit held in Singh v. Holder that being persecuted for multiple reasons, some of which may not be for protected grounds while others are for protected grounds, does not render one ineligible for asylum provided that at least one protected ground formed at least one central reason for the persecution.

Please forgive the rush, but as with the President, I am trying to catch up before the end of the year.