United States Citizenship and Immigration Services, at least in San Diego, where I practice Immigration Law, in its zeal to investigate fraud and to find reasons to deny cases it adjudicates, is putting in doubt the worthwhileness of using the Howard Termination process to resolve cases for people who find themselves in removal proceedings. The Howard Termination process is based on an October 6, 2005, memorandum, the Howard Memo, from Mr. William J. Howard, Immigration and Custom Enforcement’s (ICE) principal legal advisor at the time, wherein he said in cases where it is easy to approve an adjustment of status case pending in immigration court, it is more efficient for the immigration court to terminate a case and let USCIS adjudicate it more quickly and efficiently. The theory is that the Office of Chief Counsel from ICE can examine the facts of the case, and if it determines that the case is easily approvable, informs the immigration judge that the case should be terminated based on the approval of the parties and the independently determination of the immigration judge. The idea is that it is easier for the chief counsels, the alien, and the immigration courts to move the case to USCIS. When the memo was written, ICE was dominant in having the legal expertise and the investigatory ability to make determinations about whether the case was “easy to approve. Since then, USCIS has developed its own investigators, Fraud Detention and National Security, FDNS, and they have become very zealous in investigating cases.

When ICE and USCIS were all part of INS, they had the same goals and policies and common administrators, particularly at the local level, the local districts. Now, they are separated. The managers at the Department of Homeland Security are very remote from the agencies at the grass roots, the local offices. USCIS seems no longer willing to rely on the judgments of its counterparts at ICE or the immigration court, the judges who determine whether a case is easily approvable. Instead they want to investigate and decide all over again.

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On November 7, 2008, outgoing Attorney General Michael Mukasey turned immigration law on its head when he issued a decision, Matter of Silva-Trevino. Rather than go into all its details, I refer you to a blog I posted on it in January 2011 and an article I co-authored.  In January I optimistically forecasted that Matter of Silva-Trevino would not survive Ninth Circuit scrutiny. I wrote:

This case (Rosas Castaneda v. Holder)  also may be foreshadow the demise of another precedent decision, Matter of Silva Trevino. In this case, the Attorney General vacated a BIA decision about whether a crime an alien committed was a crime of moral turpitude and constructed a new framework for evaluating whether a crime is a crime of moral turpitude. To make this evaluation, an immigration judge is commanded to look outside of the record of conviction to determine what the alien actually did if the record of conviction is ambiguous. This is contrary to precedent in the Ninth Circuit. The abandonment of the categorical and modified categorical approaches was based on the fact that aliens do not plead guilty to “crimes of moral turpitude,” and so the immigration court needs to look beyond the record of conviction to find out what happened. Of course, people do not plead guilty to “aggravated felonies” either, but, after Rosas-Castaneda it is unambiguously clear that immigration courts are restricted to the record of conviction in determining the actual conduct. We will have to see what the Ninth Circuit has to say about whether what is good for aggravated felonies is good for crimes of moral turpitude.

In the glacial speed that wrongs are righted in our judicial system, the Ninth Circuit has not yet issued a decision in Matter of Silva-Trevino. However, three have. On October 6, 2009, the 3^rd Circuit rejected it in Jean-Louis v. Attorney General of the United States. On August 4, 2010, the Eighth Circuit rejected it in Guardado-Garcia  v. Holder. On October 12, 2011, the 11^th Circuit rejected it in Sanchez Fajardo v. Attorney General.

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Mark Wahlberg

Recently I stumbled upon a news item on a Boston Fox News website about a Cambodian teenager that immigration officials released because he could not be deported to his homeland. He had been convicted and punished for his crime, stabbing and beating to death of a teenage girl eleven years ago. After serving his time for the crime, Immigration and Customs Enforcement (ICE) was going to deport him, but when it could not, he was released from detention under an “order of supervision,” monitored by ICE until a country will accept him. The story, in the impeccably fair and balanced fashion of the mother network, was outraged that he was allowed back on the street. The article noted that around the country this has happened 1,748 times and 80 times in the Boston area in the last three years and discussed how something needed to be done about this outrage and to get these “worst of the worst” off of the streets.

To me, the alternative, indefinite detention (which means locking a person up for his entire life after having served a criminal sentence) is not a good alternative. As for the numbers, with there being 4.5 million people in the Boston area and 310 million Americans, this does not seem like a particularly serious safety issue. I wondered about prominent Bostonians with criminal behavior in their past – who of course are not subject to immigration detention or deportation – as material for the “What if he was a foreigner?” series. A name that came to mind was Mark Walhberg of Marky Mark and the Funky Bunch and later of Boogie Nights, Three Kings, The Perfect Storm, Planet of the Apes, The Italian Job, I Heart Huckabees, Four Brothers, The Departed, Invincible, Shooter, and The Fighter. Not deportable for The Perfect Storm, other conduct would render him deportable.

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When I was a kid, I remember watching an interview with the then-current crop of Nobel Prize winners on television. The concept was that these men and women were the world’s brightest people and their insights on things outside of their professional expertises would be valuable. The Physics prize winner kept saying all kinds of non-mainstream things that made him seem odd compared the others whose views were within the norm, at least to my then-child’s mind.  One thing he said that stuck with me was that the biggest problem confronting the modern welfare state is the difficulty in finding enough bright people to administer it. As agencies of the government became involved in more and more things – providing medical care, social security, a huge military, law enforcement, food safety, building roads, giving out drivers licenses and fishing licenses, funding research, fighting fires, emergency response, managing land, etc. ad infinitum, finding people to do these things correctly will become a challenge. Of all the criticisms of big government, and debate about big government in America is nothing new – it was the major theme of American political debate through the entire period of the Cold War – and perhaps a major theme since independence from a big monarchical government – this one resonated most with me.

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