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.

No comments:

Post a Comment