On January 26, 2012, the Ninth Circuit filed a decision, Oshodi v. Holder, which seems to have reversed another Ninth Circuit case, Ren v. Holder, filed on August 19, 2011.   

The issue in the case was corroboration of testimony in an asylum, withholding, and Convention Against Torture case. These are cases where people ask to stay in the United States because they are afraid to go home – either because they fear persecution on account of their race, religion, political beliefs, nationality, or social group (asylum and withholding), or they fear being tortured by the government or with the acquiescence of the government.

From what information is available, the decision and the oral argument, Oshodi is a hard case. It is a hard case because the asylum claim was based on very old events, from the late 1960′s and early 1980′s, Mr. Oshodi was detained at the time of his hearing and his attorney came aboard a day before the hearing.

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Etta James

Blues, rhythm and blues, rock and roll, soul, gospel and jazz singer, Etta James, who died on January 20, 2012, had she been a foreigner, would not have not been welcome on American shores and would have faced removal.

Reports are that she suffered throughout her life with heroin addiction. She was in the Tarzana Rehabilitation Center in Los Angeles in the early 1970′s and the Betty Ford Center in Palm Springs in the late 1980′s, this time for codeine addiction. She was also arrested for heroin possession in the early 1970′s.

Being a drug abuser or addict is a ground of inadmissibility. INA § 212(a)(1)(A)(iv). Further, conviction for or the admitting to a drug crime is a ground of inadmissibility. INA § 212(a)(2)(A)(i)(II).

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An amazing thing about immigration law is that hot topics can be issues that have been festering for years and one would imagine would have been resolved by now. For example, the Supreme Court recently decided a case, Judulang v. Holder, a very important decision about 212(c), a relief statute that disappeared fifteen years ago and involves principally the right to seek forgiveness for  illegal conduct or convictions that took place before it disappeared. The issues in the case have been undergoing litigation for decades with rulings by past notables such as Justice Robert Jackson (when he was the Attorney General), who died in 1954. Similarly, though mildly less dramatically, the Ninth Circuit Court of Appeals, and the Board of Immigration Appeals, as well as the USCIS’s Administrative Appeals Office (AAO) are struggling with the impact of the 3 and 10 year bars as well as the permanent bar on people who departed and returned to the United States without admission before April 1, 1997, nearly fifteen years ago, in a statute that became law more than fifteen years ago. One might expect that fifteen years after a law is passed, its contours would be defined. At least in immigration law, such is not the case.

I last wrote about recent developments in this issue in June 2011 addressing a Ninth Circuit case, Carrillo de Palacios v. Holder (Carrillo de Palacios I). Since then, the Ninth Circuit has superseded the decision with a new one, Carrillo de Palacios II.

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In the jargon-rich world of immigration law, an important new phrase came out of amendments to the immigration law in 1996, the 3 and 10 year bars. What these bars say is that if a person accrues more than180 days of unlawful presence in the United States and departs he or she cannot return to the United States for 3 years. If the person accrues a year or more of unlawful presence, this person cannot return for 10 years. A waiver was available. When these bars first came into being, on April 1, 1997, and found at  INA § 212(a)(9)(B), because of the cryptic way they were written, it took years to figure out what they meant.

The Department of State and the former INS as well as the present USCIS issued many cables and memoranda trying to explain how they understood the statute. In fact in 2009, twelve years after the bars came into effect, USCIS felt the need to issue a clarifying and consolidating memo. The Board of Immigration Appeals issued a decision as late as April 2006, Matter of Rodarte Roman, nine years after the law came into effect, because of confusion about the basic meaning of the law.  The Matter of Rodarte Roman decision may even have been superseded by subsequent legal interpretations.  I suspect some difficulty in understanding the bars is because the law is counter-intuitive – a person is punished by a lengthy bar to entry to the United States only if the person departs from the United States, which one would suspect was a policy goal of Congress. The 3 and 10 year bars create a perverse disincentive to departing the United States so befuddling that even as of last week, a Court of Appeals missed this point in a decision, Contreras v. Attorney General.  Parenthetically, the error is somewhat comical because the decision is about lambasting an attorney for misunderstanding the law and also evidences other misapprehensions about immigration law, such as the effect of another statute, 245(i) and gets the name of the adjudicative body at the center of the case wrong (though criticizing the court for what amounts to a clerical error is admittedly a cheap shot).

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