Monday, January 26, 2015

Out with the Old, In with the Old: Settling for Less on Comprehensive Immigration Reform

by Anish Vashistha

As we usher in a New Year, and I wish a happy one to all of you, we look to see whether more will be done on Comprehensive Immigration Reform ("CIR") while also worry whether President Barack Obama's announcement on November 20, 2014 will be reversed by a Republican-party-controlled U.S. Congress.  Here is what the President had to say about Immigration during his State of the Union Address last Tuesday:
U.S. President Barack Obama, January 20, 2015

I would assume nothing more and nothing less than that announcement will remain the status quo this year, so again it is simply best to turn toward what has been issued by the federal courts, particularly the decisions from November 2014, the same month the President made his announcement, of 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.

In Almanza-Arenas v. Holder, the Ninth Circuit held in spectacular fashion not only that a Mexican man's California conviction for vehicle theft cannot be deemed to be for a Crime Involving Moral Turpitude ("CIMT") because under the Immigration Laws it is overly broad and regardless of whether the taking of the vehicle was intended to be permanent or temporary but also that a foreign national remains eligible for relief from removal if the record of conviction is unclear as to whether such taking was indeed intended to be permanent or temporary, in contrast to a prior decision by the Ninth Circuit, and because of an intervening decision by the U.S. Supreme Court.

A few days later in Tarlock Singh v. Holder, the Ninth Circuit denounced the BIA for refusing to consider reopening, despite having received a timely motion, an Indian man's exclusion proceedings so that he could apply for adjustment of status before U.S. Citizenship and Immigration Services ("USCIS"). Similarly, in Vargas Cervantes v. Holder, the Ninth Circuit reversed the BIA by determining that it had improperly looked beyond the record of conviction when it concluded that a Mexican man's conviction for domestic violence was against his wife, thereby rendering unclear as to whether that conviction was indeed for a CIMT.

In Lai v. Holder, the Ninth Circuit amended its prior decision by determining that even a foreign national who is deemed not to be a credible, as opposed to one deemed credible, by an immigration judge must still be given notice of an opportunity to corroborate his/her asylum-related claim(s).  Similarly, in Owino v. Holder, the Ninth Circuit lambasted both the BIA and the U.S. Department of Homeland Security ("DHS") for refusing to provide a continuance to a Kenyan man so that he could submit arrest-related documents in support of his asylum-related claim(s) and for submitting for authentication purposes those arrest-related documents to the very same authorities from whom the Kenyan man claimed to fear persecution, respectively. 

Not all of the Ninth Circuit's immigration-related decisions from November 2014 pertained simply to determinations by the BIA because one such decision, U.S. v. Raya-Vaca, reversed a determination by a U.S. District Court not to dismiss against a Mexican man an illegal-reentry federal criminal charge because his due-process rights were violated during his prior expedited removal wherein he was not given by the inspecting DHS officer both notice of the expedited-removal-related charge(s) against him and an opportunity to respond.

Also, not all of the November 2014 immigration-related Ninth-Circuit decisions were positive for foreign nationals.  For instance, in Ibarra-Hernandez v. Holder, the Ninth Circuit sustained a BIA determination that a Mexican woman's Arizona conviction for identity theft was for a CIMT because although the underlying criminal-code statute does not require fraud the actual circumstances of the Mexican woman's conviction as shown in the record of conviction did involve such fraud.  Finally, the Ninth Circuit in Leal v. Holder agreed that a Mexican man's Arizona conviction for felony endangerment was indeed for a CIMT that barred him from the type of relief he was seeking.

Whether DHS will follow these various interpretations when evaluating applications brought under the President's announcement is unlikely because of how confusing their application is.  Such confusion is all the more reason for the U.S. Congress to address the issue itself, but in the absence of such U.S. Congressional action, millions of foreign nationals unlawfully present in the U.S. will have to settle for less.