President Obama on Thursday ordered his Homeland Security Secretary, Jeh Johnson, to review the government’s immigration policies to determine ways to make them more humane, a response, some speculate, to mounting pressure from advocates to stem deportations of illegal immigrants.
Here’s the problem. There are lots of people in the United States who have entered the United States with visas and overstayed them and lots of people who entered illegally. Most came to work. Many married and started families, started businesses, bought homes. Some of their spouses are lawfully present in the United States including as United States citizens. The children, those born here, are United States citizens. Some of these children are ill. Some are thriving in school. Some are grown and care for these parents or depend on their parents. Employers need these workers to pick our food, cook our food, clean our homes, run businesses – everything from the most modest of work to the most complex. Returning these people would divide families, cause great hardships and deprive businesses of workers. Because of these noble needs, there is pressure to let them stay. Many believe it is the humane thing to do. On the other had, these people broke the law and many resent their being given their goal of lawful residence in a process begun with an unlawful act. In essence, it is an argument between those who believe that the ends justify the means and those that do not – except for the nativists who have their own problems with allowing these undocumented people to stay.
Provisions for resolving the problem were contained in Comprehensive Immigration Reform legislation that passed the Senate but cannot get through the House of Representatives. The President is looking for ways to help. He asked Secretary Johnson to find ways. The President has already provided help to some of these undocumented aliens through DACA, the provisional waiver program, prosecutorial discretion, and some limited parole in place policies. He apparently would like to do more. Should Mr. Johnson need some suggestions, here are mine.
On the books now is a form of relief for aliens in removal proceedings who are in the United States illegally called Cancellation of Removal for Certain Nonpermanent Residents – INA § 240A(b)(1). To receive this relief, at the discretion of an immigration judge, and alien must:
1. Be in removal proceedings;
2. Have had continuous physical presence in the U.S. for at least 10 years;
3. Not have committed certain crimes – some quite minor and, relatedly, be a person of good moral character, again by not having committed certain crimes or certain conduct;
4. Have a parent, spouse, or child who is a citizen of the United States or permanent resident and show that this qualifying relative would show exceptional and extremely unusual hardship if the applicant for Cancellation of Removal had to leave the United States;
Congress allocated 4,000 grants of Cancellation of Removal relief per year. To get to the result of there only being 4,000 grants per year, considering the number of applicants, the Department of Homeland Security has taken a harsh line on meeting these elements. The courts of appeal have largely deferred to the Department of Homeland Security’s (DHS) interpretation of these elements. To a great extent, many more people could be granted Cancellation of Removal by loosening up the interpretations of the elements for the relief. Let me address each element listed above:
1. Make it easier for people who want this relief to be able to apply for it other than in immigration court or, ironic as it may seem, make it easier for people to get into immigration court removal proceedings.
2. The immigration “reforms” of 1996 and 1997, IIRIRA, defined the meaning of continuous physical presence in a very literal, count the days outside the United States fashion. INA § 240A(d). DHS took a more expansive approach, holding that absences after being tossed out of the United States without being sent first to immigration court would interrupt the ten years of continuous physical presence. DHS and the Department of Justice (DOJ) should apply INA § 240A(d) literally so more people would be eligible for the relief.
3. Built into the immigration laws are petty crime exceptions to inadmissibility and deportability for one minor crime of moral turpitude. This was based on the practical and humane consideration that anyone can make a minor mistake and that people are often pressured to plead guilty to minor crimes rather than face trial for small misunderstandings or minor acts. DHS has interpreted the Cancellation of Removal statute so that the petty crime exceptions rarely apply. This causes otherwise deserving people to lose their eligibility fro Cancellation because for a single minor criminal conviction. DHS and the DOJ should read these exceptions back into the law.
4. Exceptional and extremely unusual hardship is a nebulous term. DHS has interpreted this requirement in a very harsh fashion. The financial devastation to remaining family members, never seeing their parent or spouse again, and compelled relocation to places children and spouses may have never lived are most often not considered exceptional and extremely unusual hardships, contrary to most people’s notions of what hardship is. DHS and DOJ could reverse their harsh stance and take a more common-sense approach to hardship. Many Pre-IIRIRA cases have held that the exceptional and extremely unusual hardship standard does not have to be extremely onerous, requiring near life and death suffering to meet the standard. Or, DHS and DOJ could take a page from Nicaraguan Adjustment and Central American Relief Act (NACARA). Under NACARA, there is a presumption of hardship. Similarly, a regulation could be promulgated stating that a person who has lived in the United States for ten years and has a qualifying relative presumptively meets the exceptional and extremely unusual hardship standard.
Should these reforms be made, the goal would be for many more than 4000 aliens to qualify fro Cancellation of Removal each year. For those who have been found deserving but for whom a grant of Cancellation is not possible because of the lack of numbers, DHS could grant those people parole in place, allowing those with United States citizen spouses or adult citizen children to adjust status in the United States, giving them their relief sooner and shortening the wait list for grantees waiting for a number.
Secretary Johnson, these reforms, which are in conformity with existing statutes and based on rational interpretations of these statutes, could solve the problem of illegal immigration for many people while making sure that the undeserving to not take advantage of a benefit for long term residents with close family ties. Dated March 16, 2014.
When an alien applies for relief from removal, he has to prove eligibility for the relief according to INA § 240(c)(4)(A). For some forms of relief, principally voluntary departure and Cancellation of Removal for Certain Nonpermanent Residents, one of the requirements for relief is that the applicant not have had any convictions for crimes of moral turpitude. Whether a crime is a crime of moral turpitude is indubitably among the issues most addressed by courts of appeals.
A big problem for aliens seeking relief is that if it is unclear whether a conviction is a crime of moral turpitude, then according to the BIA in Matter of Almanza-Arenas and the Ninth Circuit in Young v. Holder, the alien fails in meeting his burden to show eligibility.
Trying to figure out if a crime is a crime of moral turpitude has led to all kinds of methods of analysis. The BIA tried to expand what can be looked at besides conviction records. The 9th Circuit tried to expand the elements of a crime to include missing elements. These have been shot down, as discussed last here.
There are two basic scenarios where it is ambiguous whether a crime is a crime of moral turpitude. The first is where a crime is divisible – where the criminal statute includes several offenses, some of which are morally turpitudinous and others are not. An example is where a person is convicted of domestic violence battery. Battery under California law can be for force or violence. In the domestic violence context, force is not necessarily morally turpitudinous while violence usually is (never say always). If a person is convicted of battery, the question is whether there was force or violence involved. The Supreme Court, in Moncrieffe v. Holder, concluded that the immigration court cannot look outside the conviction record to make this determination. If the record of conviction is ambiguous, let’s say because the alien pled guilty to “using force or violence against my spouse,” then the person cannot prove eligibility for Cancellation of Removal or voluntary departure as the law stands now.
The second scenario is when an element is missing. Suppose a person is convicted of having sexual relations with a minor. At least in the 9th Circuit, not all such crimes are morally turpitudinous. An 18 year old having sex with a 17 year old is not morally turpitudinous while a 21 year old having sex with a 10 year old is. If the criminal statute does not list specific ages, then one would have to add the missing age element to the crime. It was this adding of the missing element that the Supreme Court shot down in Descamps v. United States. The question then is, if the statute does not indicate ages that are morally turpitudinous, does the alien fail to prove eligibility? According to a recent case in the Ninth Circuit, United States v. Garcia-Santana, an alien does not fail in meeting the burden of proof for eligibility for relief if the element is missing.
Garcia-Santana is an illegal entry case, which I have written about here. The case involves whether a crime is an aggravated felony, not whether a crime is a crime of moral turpitude. Like a person who was convicted of a moral turpitude crime, a person with an aggravated felony conviction is ineligible for voluntary departure. Ms. Garcia-Santana was convicted of “conspiracy” under Nevada law, which unlike the standard definition, does not have an “overt act” element. As this element was missing, according to the Ninth Circuit, Ms. Garcia-Santana could not be found to have been convicted of an aggravated felony when he was ordered removed. At his removal hearing, the immigration judge concluded that Mr. Garcia-Santana had been convicted of an aggravated felony and as a result found him ineligible for voluntary departure. The Ninth Circuit concluded that the immigration judge was wrong not to consider voluntary departure for Ms. Garcia-Santana and thus her removal hearing was faulty and she could not be tried for illegal reentry for returning to the United States after his removal.
Disappointingly, the court did not discuss the burden of proof issue for eligibility for relief of Matter of Almanza-Arenas and Young v. Holder, but by finding that the alien was improperly denied the opportunity to seek voluntary departure relief, the clear implication is that the burden of proof issue does not apply in missing element cases. That leaves the burden of proof issue as a concern in divisible statute cases. The Ninth Circuit is considering the issue in Almanza-Arenas v. Holder en banc. Perhaps Garcia-Santana is a foreshadowing of the demise of the Matter of Almanza-Arenas / Young v. Holder problem in the case of ambiguous divisible statute convictions in a case to come. Hopefully his new case will also be more explicit about the demise of the problem in missing element cases. Posted March 13, 2014.
Immigration law, as immigration lawyers (and their clients) say often, is quite complex. There are a lot of hoops people have to jump though to get a benefit. Forms on top of forms asking the same things over and over. Fees on top of fees. Petitions, applications, security checks, medical exams, interviews, investigations, verifications. With all the stuff that is deemed necessary, the Department of Homeland Security and the Department of State should, one would think, want to eliminate pointless processes. Here are three that should be eliminated posthaste:
1. Giving permanent residence cards to U.S. Citizens.
According to INA § 320, if a person is under 18 years old and becomes a permanent resident or is a permanent resident and his parent is or becomes a U.S. citizen, the child automatically becomes a U.S. citizen. It’s magical, cosmic. Here is what the statute says:
§320. Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired
(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence….
So what happens when a child whose parent is a U.S. citizen becomes a permanent resident? He is sent a green card. But he is not a permanent resident. He is a U.S. citizen. Why should the U.S. government sent a U.S. citizen a green card. He should be sent a certificate of citizenship. USCIS indicates that the fee for making a permanent residence card is $165. I say apply that amount to making a certificate of citizenship. It reflects the child’s real immigration status and may even save the government a little coin.
2. Making people with criminal hits get fingerprinted over and over.
Anyone who gets involved in immigration benefits knows he will be fingerprinted over and over again. People who commit crimes and are fighting to keep or obtain legal status can find themselves fingerprinted over and over by CBP, when encountered at a border, ICE, while being processed for removal proceedings, and by USCIS, over and over, while seeking benefits. USCIS cannot store fingerprints in its databases (apparently) and does not want to rely on having a fingerprint card in an individual’s file (apparently). So, over and over, people get fingerprinted. However, people who are identified as having a criminal conviction through IDENT, are assigned an ID number and records can be checked simply by using the ID number. If the idea of having a fingerprint card in every file is too bewildering, then at least for people who have a criminal conviction, which is a great number of people if you consider all the things people get arrested for, no fingerprinting should ever be required. That would save the government and its customers a lot of aggravation and a lot of money and will end the question I am asked all the time, “Why do I need to be re-fingerprinted? My fingerprints have not changed?” OK, two questions.
3. Making provisional waiver grantees go abroad.
As all aliens should know, but unfortunately it never seems to penetrate, if a person is in the United States in “unlawful presence” for more than 180 days and departs the United States, or for a year ore more and departs the United States, he cannot come back for 3 years or 10 years, respectively. INA § 212(a)(9)(B). Further, according to immigration law, a person otherwise eligible to adjust status (become a permanent resident) in the United States, cannot adjust status if he entered the United States without inspection. INA § 245(a). The way to become a permanent resident is limited. For the most part (there are exceptions, always with the exceptions),the person must leave the United States and obtain an immigrant visa at a U.S. Consulate abroad. Being in the U.S. after entry without inspection is one way that the accrual of unlawful presence starts. So, if a woman enters the United States without inspection and marries a United States citizen after the passage of 181 days from the initial entry, if she leaves to get a visa, she faces a 3 year bar to returning to the United States. If she allows a year to pass and leaves, she cannot come back for ten years. I laid all this out in a movie.
There is a waiver for this unlawful presence bar at INA § 212(a)(9)(B)(v). If an applicant for a permanent residence visa can show extreme hardship to a U.S. citizen parent or permanent resident spouse or parent, the person can waive the 3 and 10 year bars. It used to be that to get the waiver, the applicant must leave the United States and apply for the waiver at the consulate where he was applying for the immigrant visa. Adjudicating the waiver would take a year or more and the person just had to wait in Mexico. Then President Obama, in an amazing gesture to people trapped in this Catch 22 (you cannot get your green card here, but if you leave you cannot come back for 10 years unless you get a waiver, which will take a year to decide and if denied, you are stuck outside for several years) initiated what is called the provisional waiver program, which allows for pre-departure waiver approval. Thus, a spouse does not have to leave the United States to get the waiver. If the waiver is granted, the alien is virtually assured he or she can go abroad to a Consulate, have an interview, get a visa, and come back as a permanent resident. The virtual assurance is because USCIS will not grant a visa to a person who appears inadmissible for any reason other than the 3 or 10 year bar.
So if a waiver is granted, why make the poor soul who already spent a fortune to get to the step of having a waiver approved (Immigrant visa petition – $420; Department of State fees – $318; provisional waiver fee – $670 (not sic)), take a trip abroad to get a visa that could be issued in the United States if only the person had entered legally? Why not just parole in place the applicant with the approved waiver and let him finish up in the U.S.? What possible point is there to making the pre-waived applicant finish his processing abroad when it can be done quicker and cheaper here while freeing up the Consulates for customers who need to get into the United State and are not already there.
Three simple changes. Huge savings to aliens and to the government. Dear government, please send my check to exposing waste to my PO box. Posted February 24, 2014.
TRAC, a data gathering, data research, and data distribution organization at Syracuse University, reported that immigration judges are deporting fewer aliens as a percent of those in removal proceedings. The report states:
Immigration and Customs Enforcement (ICE) has had diminishing success in convincing Immigration Judges to issue removal orders. Such orders are now granted only about 50 percent of the time, the lowest level since systematic tracking began more than 20 years ago. For years, the rate at which removal orders were granted in response to DHS requests had fluctuated between 70 and 80 percent. For example, five years ago deportation orders were issued for 3 out of every 4 cases (76.2%) to reach the Immigration Courts. During FY 2011 that rate had fallen to 70.2 percent; by FY 2012 it had slipped to fewer than 2 out of 3 (62.6%). Last year court records indicated a 52.9 percent success rate, and during the first four months of the current fiscal year 2014 (October 2013 – January 2014) it was down to only 50.3 percent.
TRAC interprets the data as a failure of ICE to succeed in removing people. For many reasons, The conclusions seem to me to be a facile syllogism from the data, ignoring the reality of the immigration court system. It seems these are the postulates of TRAC:
1. ICE places in proceedings people it wants to deport;
2. ICE wins when it deports someone;
3. ICE loses when it deports someone;
4. The results in immigration court an be reduced to the binary deport and not deport.
Here are the actual and proper postulates:
1. ICE places in proceedings people that the statutes require to be placed in removal proceedings. ICE attorneys have different standards for handling cases than the officers that initiate proceedings;
2. The immigration courts’ job is to determine eligibility to remain in the United States and ICE’s job is to make sure that the determinations comport with the law;
3. When an immigration judge grants asylum, Cancellation of Removal, adjustment of status, or whatever relief is available and ICE does not oppose the grant, it is a victory for all parties;
4. Immigration judges not only order removal or terminate cases, but they close cases because of discretionary policies articulated by Immigration and Customs Enforcement, USCIS, and the Department of Justice, and because relief from removal will ripen, but has not yet ripened.
Let’s use an example. Alice the Alien is encountered by an ICE officer while leaving a medical clinic with her blind United States citizen daughter. Alice has been in the United States for nine years and in addition to caring for her blind daughter, has two other United States citizen children that she cares for and supports through working full time. Her husband is a permanent resident who will be eligible to naturalize next year.
ICE determines that Alice is not lawfully present in the United States and sends her to immigration court. ICE attorneys evaluate her case and determine that Alice is not a prosecutorial priority for ICE. ICE moves to administratively close the immigration case. Of course Alice agrees. While TRAC may look at this as ICE failing in its mission, instead, ICE, like all law enforcement agencies, makes determinations about who it can pursue and who is not worth the effort. ICE now has more resources for its priority cases. Alice, who has hurt no one and has a full plate of responsibilities, is left alone.
Let’s modify the example. Alice’s facts are the same except Alice was arrested for shoplifting three years ago. Her contention is that a child grabbed a candy bar off the shelf while she was shopping and plopped it in her handbag. She did not notice the candy bar but store security did. Rather than fight the charge, she pled guilty to a misdemeanor shoplifting crime and paid a small fine.
ICE again encounters Alice and places her in removal proceedings. ICE attorneys feel that because of the shoplifting they will not exercise their prosecutorial discretion to seek administrative closure. The immigration judge learns that Alice’s spouse is a resident and will be able to petition for Alice’s permanent residence in a year and half. Rather than causing Alice all kinds of problems, the immigration judge uses his own authority, relatively newly provided to him, to administratively close the case so that in a year and a half he can entertain Alice’s green card application.
In both scenarios, it could be read that ICE has failed to deport, but in reality the system is simply being practical about applying the power to deport.
The data itself do not support many conclusions , but it very well could be that the figures highlight a disconnect in ICE’s behavior. It could well be that ICE officers who encounter aliens are placing them in proceedings when under ICE’s prosecutorial discretion policies, they could simply be left alone – like a policeman admonishing a youngster to behave himself and telling him to run along rather than arresting him. This would create the gap between the number of people placed in removal proceedings and the number actually ordered removed.
One last modification. Alice is encountered leaving the medical clinic. Alice is a permanent resident. Alice came to the United States as permanent resident as a young girl. In her early twenties she was convicted of drug possession. It was a dark time for her, but she persevered and put it all behind her. Now, ten years later she is encountered by ICE whose technical abilities to cull old court records and find aliens with old convictions gets better every day. An immigration judge determines that while ten year old drug conviction is indeed a removable offense, Alice merits forgiveness under the Cancellation of Removal statute based on her long residence in the United States, family ties, hardships to herself and her family if she is deported, her work history, and her rehabilitation. ICE attorneys do not oppose the grant of relief and Alice is allowed to stay in the United States.
Here, the issue is not that ICE has failed to remove Alice. Rather, ICE has placed into the immigration court system a person who, before the advances in technology allowing ICE to mine state databases for old crimes, would not have been encountered. This does not mean that ICE is failing to remove people, but rather requiring more people, many with minor crimes long ago in time, to go through the forgiveness process. ICE’s interest is to enforce the law, including allowing Alice to seek Cancellation of Removal. Alice’s success is not ICE’s failure. While this should be eminently clear, just to illustrate, let’s use another example. Suppose in response to shootings at movie theaters, the government decides that it will place officers, a Movie Security Agency, at movie theaters to randomly search movie goers. Astute observers of potential wrongdoing, the MSA finds security or criminal activity in ten percent of the people it searches. However, people object to the random nature of the searches, feeling that the MSA is profiling movie goers. (Just because someone is wearing cargo pants does not mean there is a reason to stop him for Milk Dud smuggling). In response, the MSA searches everyone. More people are caught who are security or criminal threats, but overall, only one percent of searches result in apprehension. While it is true that the MSA is finding ten times fewer people as a percent of searches (dropping from ten percent to one percent), this is not because of some sudden failure of the MSA, but because of changes in policy.
All too often USCIS, CBP, and ICE place people in removal proceedings who do not deserve to be there. These agencies, I believe, rely on ICE attorneys to prosecute cases without giving ICE attorneys the authority to analyze them before the instituting of proceedings. Thus, people who are not removable at all or who clearly fit into prosecutorial discretion criteria are placed in removal proceedings, which are soon terminated or administratively closed. However, the data does not reflect that something is wrong on the prosecution side. It rather shows that removal system needs major fixes so resources are better allocated to the nation’s goals – if anyone can figure out what the nation’s goals actually are. That is a political problem, not a legal or administrative one. Posted February 17, 2014.