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.

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