The Board of Immigration Appeals and the many other immigration-involved agencies in the federal government sometimes remind me of the movie, the Bridge on the River Kwai. A recent decision, Singh v. Holder, highlighted this. If you recall, in the Bridge on the River Kwai Alec Guinness engages in a battle of wills with the evil Colonel Saito about who is in charge of building a bride over the River Kwai. Colonel Nicholson, Guinness, forgets that his role in the world is not to build and protect a bridge for the Japanese, but to defeat them.
Immigration law is a complicated architecture of statutes piled up on top of each other with a large body of implementing regulations, and administrative practice memos, operating instructions, administrative decisions, administrative case law, and judicial case law all to be considered when adjudicating a person’s case. Agencies and bodies are then created or adapted to implement the statutes and regulations – agencies like the immigration court, Board of Immigration Appeals, Department of Justice, DHS, USCIS, ICE, and CBP, DOL …. The goal, of course, is the execution of the law with the goals of the law in mind and with broader principles such as consistent adjudication, maintaining family unity, and adherence to constitutional values like due process and equal protection. Unfortunately the structure gets rigid. The agencies and bodies create their own rules and lose flexibility and sense in administering the laws intrusted to them. They create cultures of mean spiritedness and inflexibility not found in the laws themselves.
This is what happened in Singh v. Holder. The immigration system is confronted with a relatively unique, but not that unique fact pattern. A person, Singh, is ordered removed by one body, the immigration court, but is eligible for a green card from a different body, USCIS. The question is which will prevail. Will Singh be removed or given an opportunity to become a permanent resident. Without any intervention by the courts, because ICE executes removal orders and because ICE has the guns, ICE will prevail. Singh asks the BIA to reopen his case and the BIA says, essentially, “No can do. Our regulations don’t allow us to reopen cases because of factors outside of our jurisdiction.”
“Wait a minute,” the Court of Appeals said. Your purpose is not to uphold your own architecture of rules and regulations for their own sake. Like Colonel Nicholson, who was not in Indochina to show the Japanese about the indomitable spirit of the British people, but rather to defeat them, the BIA is not here to satisfy itself, but to fairly administer the immigration laws consistent with the values in the laws and Constitutional and American values in general. Like Colonel Nicholson tearing up the wires set up to blow up the bridge, the BIA tore up the wires that allow a person eligible to become a permanent resident under the laws it administers to thwart the real goal – fairly and properly administering the law. Unlike in the movie, in Singh v. Holder, the BIA never came to its senses about what its real goals are. It was the Court of Appeals that fell on the plunger. The case is back at the BIA. Let’s hope the BIA now realizes what it has done and instead acts in conformity with its real purpose instead in getting mired in bureaucratic hindrances of its own creation. Posted November 23, 2014.
It has finally happened. The Ninth Circuit ruled in the case of Almanza-Arenas v. Holder. The case at the Ninth Circuit was on review from the Board of Immigration Appeals. It stood for the proposition that when a record of conviction is ambiguous as to whether a crime makes one ineligible for relief, then the person seeking relief fails to meet the burden of eligibility, which is on the applicant, and therefore cannot be granted the relief. The issue arises mostly in considering whether a crime is a crime of moral turpitude or an aggravated felony, classes of crimes that disqualify aliens from many forms of relief. The Ninth Circuit reversed the BIA. Assuming the government does not seek re-hearing in Almanza-Arenas and assuming the BIA adopts it nationwide, the five year experiment in reading facts from outside of the record of conviction to determine conduct has come to the end with a victory for not reading outside of the record.
It has been a long ride to get to this day. I have discussed it many times, including here. A lot of decisions got us here, including two last year at the Supreme Court, Moncrieffe v. Holder and Descamps v. United States. We had to absorb concepts like categorical versus modified categorical approaches, missing element cases, and divisible element statutes versus indivisible element statutes with multiple means as discussed here. We have yet to have such a case yet, but I have already seen in practice analyses of a divisible statute where the elements of the divisible crime have multiple means and missing elements.
This was not a right wing anti-immigrant versus left wing pro-immigrant struggle. Many on the right abhorred that immigration courts had to make findings about criminal cases that were not what a person admitted as a basis for the conviction or a jury found to render a guilty verdict. Some on the left abhorred that people who did bad things to the defenseless would get off on technicalities. The real split was not left-right, but rather those that adhered to the principle that the only trial about a crime should be the criminal trial and not the immigration court trial, versus those that found detestable that people who everyone knew did bad things could avoid the consequences of them. An adult could avoid the consequences of engaging in sexual conduct with a child by pleading to a charge that avoided age. A person stealing from a store could avoid responsibility for theft by pleading to burglary. A person could avoid the consequences of a firearm offense because the statute of conviction included violations involving antique weapons, even though the conviction was not based on an antique.
What to me particularly commends the approach that immigration courts should not retry criminal cases is the large number of cases in which I have been involved where the immigration judge got it wrong, finding an aggravated felony or a crime of moral turpitude was committed without sound basis. Immigration judges would rely on police reports where witness or victim statements contradicted what the perpetrator said. Immigration judges would read turpitude into outside-of-the-record conduct that was not a basis for the conviction. The days of such fanciful judicial imagination hopefully are behind us. This does not mean aliens will be going scot free en masse. Firstly, even if a crime is not an aggravated felony or morally turpitudinous, it can still be a deportable offense. Relief is discretionary and judges can look outside of the record of conviction to consider discretion. As Justice Sotomayor wrote in Moncrieffe:
… having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.
I, for one, hope that all this analysis of what is not in the record of conviction as opposed to what is is behind us. There is a ton of stuff to fight about in immigration law interpretation so it is not like practitioners will have nothing to do now. Posted November 11, 2014.
Saying something is “political” is not necessarily pejorative as the making of government policy is a political act. Nonetheless, when you see the actual political biases in actions, it is hard to be sanguine about the hypocrisy. A recent example is the matter of Cubans surging to America’s shores. This flood is not much smaller than the flood of Central Americans in the news earlier in the year, which has been largely stemmed despite the rampant gang violence, domestic violence, poverty, and drought endemic to that region which has not abated, thus condemning residents there to misery.
Despite the fact that the Cubans fleeing do not have it as bad as the people fleeing Central America and thus less deserving of our sympathy, and the fact that because of the Cuban Adjustment Act these Cuban arrivals cut to the front of the mythic line people should not cutting to the head of, and the fact that there is no review of the merits of their request to stay in the United States, there is no objection to the influx. No one is accusing the President of trying to destroy America by letting these Cubans in.
Why? Here’s the political hypocrisy. Cubans go to Florida. Cubans historically have voted Republican though as of late this is less true. They are a large voting bloc in Florida. Are Republicans going to make a fuss about Communism-fleeing Cubans coming to America and risk alienating Cubans, Republican and Democratic, who vote in this important swing state? Obviously not. The difference between the reaction to the population waives is not based on a different evaluation of human rights concerns, but quite simply because of politics. Posted November 8, 2014.
A couple of weeks someone was talking to me about how she wanted an accommodation from someone within a big bureaucracy. She did not get it and was perplexed and slightly angry that she got know. As she saw it, a little accommodation would have been more efficient not only for her but for the big bureacracy. Ever the contrarian, I explained that if certain things need to be accomplished by tens of thousands of people, part of the large bureaucracy, then having these tens of thousands of people each do what needs to be done their own way at their own speed, on their own clock would lead to disaster.
Invigorated by my positive spin on bureaucracy, I discussed the issue soon thereafter with an immigration lawyer colleague. He added another insight. If everyone was able to be flexible, then corruption could enter the system. A person with the authority over someone, like a boss over a subordinate or a cafeteria cashier over a customer, could exact fees or favors for service. It is this kind of corruption that many clients say they are escaping when they come to the United States. Often clients familiar with the corruption in their homelands expect that I have pull and can make things happen that should not or make things happen faster by greasing the wheels. Fortunately, there is little corruption visible in the immigration system. This is at least partially because the bureaucracy is somewhat inflexible.
Armed with my new magnanimousness towards bureaucracy and thus ready to face the large government immigration bureacracy with a patience and empathy and some gratitude for its incorruptibility, it did not take me long to become disabused of my theory. That is because the theory lacked an important component – that a bureaucracy also has to be efficient. Barring efficiency, you end up with an incorruptible but frustratingly inefficient organization.
In the last two weeks this is some of the shenanigans I had to deal with:
1) A client could not be considered for release from immigration detention until after his first court date, nearly a week later, because the officers in charge of releasing the client had to relinquish their file to the government attorneys to prepare for court a week before the hearing. Giving away the file for nearly a week had to happen even though the attorneys’ office is co-located with the officers’ office and preparation for court could not have lasted more that a few minutes.
2) Paperwork delivery was delayed because government officials would not accept documents I hand delivered to them at a detention center. The same paperwork had to be brought to the same front desk by Fedex.
3) A client’s interview for a green card was divided into two parts scheduled three weeks apart in two separate offices by two separate adjudicators. The first interview could not be completed because the officer did not have the file for the second interview. Three weeks later, the second interview could not be completed because that officer did not have the file from the first interview. These offices have been conducting interviews day after day for fifty years and yet twice the agency could not get two files to the right place at the right time twice.
4) A client’s case is stuck at a USCIS local office. To ask about a case requires making an appointment at the local office. Appointments are mainly unavailable or, if available, availability is two weeks out. Traveling to the office takes a half hour. Waiting for the appointment takes another hour. Then, more often than you would think, the answer you get is not satisfactory. USCIS implemented a new system, e-request, where you can fill out an online form to inquire about a case. The answer is supposed to come by email in a couple of weeks. I made the inquiry about the stuck case through e-request. I never got a response. The rule is that if the e-request does not work, you should call USCIS’s customer service telephone hotline. So I did. When I called, I was told that no officer was available right then and an officer would call me back in an hour and a half. Not often am I able to be at my desk for an hour and a half, but that day I was. An hour an a half later, an officer called me to tell me after a few minutes of computer searching that I would need to make an appointment at the local office. Hey, Officer, I did not set up e-request and the customer service hotline systems, you did. Three weeks down the drain.
I could provide examples of other recent screw ups – an appointment notice set for a day in 1970, or a request for evidence that requested a change on a certain page of form and also informing me that this same certain page was missing, which it wasn’t. But these kind of mistakes are clerical errors which are bound to happen. The four episodes above are systemic bureaucratic problems that will probably never be fixed because the bureaucracies are so large and intractable that the people involved in them would rather just shrug and express resignation than actually fix them. Posted October 18, 2014.