There was immigration-practice-related developments in the main stream news this week. First, the President announced that any executive orders he will make about immigration law will be after the November (2014) elections. Also, it was reported that the immigration court backlog has reached 400,000.
The popular wisdom is that the President needs to issue executive orders to placate the pro-immigration forces that are part of his base. As the President cannot run for president again, why he has to keep his base happy is a little elusive to me, there may be some truth to this. Why he decided to wait till after the elections is obviously more of a political decision, which does not mean it is a bad reason, as running an administration, a country and a world is politics. That is why we call the study of running administrations, governments, countries and managing the global order is called political science. Just ask Frank Underwood.
I believe there is more than a political motive to take executive actions. Across the political spectrum it is acknowledged that the immigration system is broken. When something is broken, if it matters, it needs to be fixed. If Congress cannot fix it, the chief executive has a duty to.
This is where the news of a 400,00 backlog in immigration cases comes from. Think about that number for a while. The government placed 400,000 in proceedings to remove them from the country, obviously because of their undesirability to live amongst us (or else, why deport them?). At least 370,000 are freely roaming the country, i.e., living their lives. Yet, their cases are hung up is a 400,000 long queue that gets longer and longer each year.
When I first began practicing immigration law in San Diego in 1994, there were three immigration judges. Within a few years the number expanded to eight judges. It has remained eight judges ever since. In 1994, there were about five deportation officers and some supervisors. They shared floor space with other government functions on two floor of the federal building – including a huge file room and three immigration courtrooms with room for staff, offices, and chambers(es?). They have since taken over both of the floors as well as space at a giant detention center. There are now more officers than any one practitioner could ever know and people behind the scenes practitioners never see. In other words, the business of arresting and detaining aliens became big business and the business of adjudicating their deportations stayed at the same Mom and Pop level for nearly two decades.
There were some modest stabs at reducing the backlog. The Department of Justice implemented “completion goals” in the mid-2000’s that hung over immigration judges heads, and like anyone who knows anything about litigation knows, actually hung over the litigants’ heads, and anyone who ever defended rather than prosecuted knows, hung over the defendants’ heads. The Board of Immigration Appeals began issuing one judge decisions, but at the same time it cut its size in half – perhaps some EOIR http://www.justice.gov/eoir/ bravado: “Appeals, we don’t need no stinkin’ appeals.” The backlogs persisted. Draconian detention laws came into force to coerce aliens not to fight their deportations, yet still the backlogs grew.
The 400,000 backlog number probably is not the true picture of the backlogs. I assume the 400,000 reflects active cases pending. There are thousands upon thousands of inactive cases – administratively closed cases – where immigration judges decided that they wanted to allow cases to sit dormant rather than deciding them one way or the other. These days this is happening in cases of undocumented aliens eligible for the form of relief most can pursue – Cancellation of Removal for Certain Nonpermanent Residents. Because only 4,000 of these can be granted in a year and the number granted far exceeds that number, immigration judges are administratively closing these cases rather than deciding on relief that cannot be granted. Other cases are being closed because the government is exercising its “prosecutorial discretion” not to pursue them or because the aliens are protected from removal by Temporary Protected Status, Deferred Action, because legal issues remain unclarified, or because other relief, such as adjustment of status, will ripen in the near future, to list some reasons.
With hundreds upon hundreds of thousands of cases pending, Congress could allocate money for more immigration judges and BIA members. But Congress won’t. If you consider the fact that aliens subject to deportation run the gamut from serious criminals to long-term undocumented who have families and homes and jobs, from people who have been here for 30 years to people who have been here for 3 months, if the immigration courts can only deal with a fraction of cases pending, triage is appropriate. Some sort of system to allow those less undesirable and, in fact, desirable, to stay so resources can be devoted to getting rid of people who “should be” gotten rid of should be implemented. “Should be” is the touchiest and hardest political issue of all, of course.
If you feel that the rising backlogs are not of any consequence – it does not matter – than executive action seems like an unnecessary, political move. However, if you believe that the laws designed to get rid of the undeserving and undesirable should be properly administered, but cannot be because of irrational resource allocation, then you should agree that some kind of prioritization should be enacted to try to give some semblance of rationality to who shall leave and who shall stay. Executive action is not the act of an over-reaching executive. It is the act of a man doing his job. Posted September 7, 2014.
A few months ago I attended a talk by a judge on the 9th Circuit Court of Appeals. She stated that about two thirds of immigration appeals before the court are resolved before the cases are briefed. Because of active efforts by the court to reduce the docket, by compelling mediation, by reviewing cases initially to see if they are properly filed, and by ruling on initial motions to dismiss, the court is working to control its docket.
Recently, I received a notice from the Board of Immigration Appeals, the administrative appellate body above the immigration courts. Regarding motions to remand – motions to send the case back to the immigration court, the Board wrote:
The Board generally does not separately adjudicate motions to remand. Due to the Board’s heavy caseload, it cannot be predicted when a decision will be rendered in this case. If a briefing schedule has been set in this matter, the filing of [a] motion to remand does not change the deadlines. The briefs must arrive at the Board by the dates set in the briefing schedule.
Hypothetically, suppose a motion to remand is filed with the Court of Appeals and at the same time, in another case, a motion to remand is filed with the Board of Immigration Appeals. Now, suppose the opposing parties notify the Court of Appeals and the Board of Immigration Appeals that they do not oppose the remand motions.
In the case of the Court of Appeals, desiring to reduce its docket, will review the motion and non-opposition, and because the parties agree and assuming no glaring error has been discovered when the case is reviewed, remand the case. The case then moves to the next forum and can be presumably be resolved quickly. The Court of Appeals rids itself of a case, a decision is made quicker, needless briefing that no one will read is eliminated, and the entire system becomes more efficient and cheaper to the litigants and to the taxpayers that pay the judges and pay the government’s litigators.
In the case of the BIA, despite an unopposed remand motion, the case sits on the shelf. The parties get no resolution. The BIA’s docket remains large, meaning the case will take even longer to be looked at. The BIA may even require briefing on issues that the parties have indicated do not need resolution. The BIA’s docket remains large, the case is not resolved, and the system remains bogged down.
The BIA should reconsider its policy of letting easily-resolvable cases fester on its storage shelves. Culling the easily resolved cases will speed up justice and save money. It may even make participants in the system a little less cynical about how the immigration court and BIA function. Maybe. Posted August 28, 2014.
I have written previously about how the Board of Immigration Appeals, the courts of appeal, and the Supreme Court have been struggling over how to determine whether an individual’s crime is a crime or moral turpitude or an aggravated felony. I wrote three years ago about the 9th Circuit Court of Appeals’ en banc adventure in creating a missing element rule in trying to determine if a particular crime was a crime of moral turpitude or an aggravated felony in U.S. v. Aguila-Montes de Oca. A little more than a year ago I wrote about how the Supreme Court overturned that decision in Descamps v. United States. I noted that there was still one issue still hot and unresolved in the area of determining how to characterize a conviction. This is the issue of whether an indeterminant record of conviction as to whether a person was convicted of an aggravated felony or a crime of moral turpitude can meet his burden of proving his eligibility for certain relief from being deported if those forms of relief require that one not be an aggravated felon or someone who committed a crime of moral turpitude. The BIA in Matter of Almanza-Arenas, and the Ninth Circuit Court of Appeals in Young v. Holder have said that a person cannot meet the burden when the conviction documents are indeterminant.
I wrote about how the Supreme Court, in Moncrieffe v. Holder, shook the foundation of Matter of Almanza-Arenas and Young v. Holder, but the decisions still stand. Last week, the 9th Circuit limited the impact of these cases in its decision in Rendon v. Holder. In Rendon v. Holder, the Court of Appeals explained that a person can only be found to have been convicted of the elements of a crime that specifically must have been found by the fact finder. The Court distinguished between divisible statutes, where a defendant is convicted of a crime defined by a distinct set of elements but other crimes with unique elements are bunched in the same statute, and a crime where any of a broad range of elements, of which the fact finders do not need to agree or which do not need to be specifically ascertained, result in a conviction. In such a case of “divisible elements,” one cannot be said to have been convicted of a crime defined by one of the divisible elements if it is possible to be convicted by another in the set of divisible elements. Specifically addressing Young v. Holder, the Rendon court wrote:
Young held that, when a court applies the modified categorical approach, a petitioner cannot demonstrate eligibility for cancellation of removal on an inconclusive record because, in such a case, it is both “possible that Petitioner’s prior conviction constitutes an aggravated felony” and “possible that it does not.” . That is because the modified categorical approach allows a court reviewing a prior conviction under a divisible statute to determine which of “several different . . . crimes” was at issue.  In contrast, a defendant convicted of an indivisible statute has necessarily committed the one crime at issue, and that crime is either a match to the federal, generic crime, or it is not. The record is never inconclusive. Thus, if the petitioner establishes that the statute under which he was convicted is indivisible and punishes a broader range of conduct than the federal, generic crime, it is never possible for that conviction to qualify as an aggravated felony, and the petitioner has met his burden.
Rendon “clarifies” what is meant by ambiguity or indeterminantness in a conviction. It remains to be seen if the full court will allow for this weakening of Young or if it will hear Young en banc. Or, will the 9th Circuit finally rule on Matter of Almaza-Arenas, which has been pending before it since December 2010. Posted August 27, 2014.
On July 21, 2014, Governor Jerry Brown signed SB 1310 into law which, oddly, has the State of California correct what appears to be a scrivener’s error in the Immigration and Nationality Act.
As harsh as the immigration laws are, there are areas where there is leniency in it. One such leniency is the petty crime exception. This exception makes takes away the harsh result of inadmissibility or deportability for one crime of moral turpitude. While figuring out what moral turpitude crimes is a complicated issue that courts of appeal constantly must confront, some crimes are established moral turpitude crimes. One such crime is theft. Another is domestic violence against a cohabitant. Understanding that people make mistakes, one such crime can is forgiven.
The removal laws are divided in two. There are crimes that lead to inadmissibility – stopping a person from entering the United States or becoming a permanent resident while in the United States, and crimes of deportability – crimes that lead a person in the United States being deported. Curiously, the list of crimes differ. For example, there is no ground of inadmissibility for a conviction for a firearms offense, but there is a ground of deportability for a firearms offense.
The petty crime exception also differs in the inadmissibility context and the deportability context. In the inadmissibility context, the exception, found at INA § 212(a)(2)(A)(ii)(II) states that inadmissibility does not apply to one crime of moral turpitude if:
the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
The petty crime exception for deportability, found at INA § 237(a)(2)(A)(i)(II), states that deportability for one crime of moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) ) after the date of admission, does not apply if the alien is convicted of a crime for which a sentence of one year or longer may be imposed.
Careful reading reveals that a person convicted of a crime where the potential sentence is one year is protected under the inadmissibility exception but not the deportability exception. The deportability exception does not say in “in excess of one year,” but rather “one year or longer.”
There is no rational explanation for the difference, but Congress has never fixed it.
What difference, you may ask, does a day make? A lot. Here’s why. Crimes in California can be divided into two types – minor (pettier) ones are misdemeanors and more serious ones are felonies. Many crimes in California are wobblers – they can be charged as misdemeanors or felonies. Many stand-alone misdemeanors have a maximum sentence of six months, like shoplifting. Some have maximum sentences of one year. When a wobbler is charged as a misdemeanor, the usual maximum sentence is one year.
Should a person be convicted of a misdemeanor with a maximum sentence of one year (and meets the low actual sentence), he will be subject to the inadmissibility petty crime exception as the maximum sentence does not exceed imprisonment for one year. However, the same misdemeanor conviction does not fit the deportability exception because it is a sentence of one year or longer. This difference affects many people with one minor conviction when by all accounts the law was designed to insulate them from deportation for one minor crime.
The one-day difference also affects people seeking Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b), – a form of relief for people in the United States without documentation for ten years or more and can show that their deportation would cause exceptional and extremely unusual hardship to their legal parents, spouse, or children. This relief is not available to people who have convictions for crimes of moral turpitude except if they fit under the petty crime exceptions. While one misdemeanor moral turpitude conviction would fit under the inadmissibility exception, it most often would not fit under the deportability exception. Thus, a person slapped on the wrist for a petty crime is ineligible for relief from deportation even if it would mean exceptional and extremely unusual hardship to a United States citizen family member.
SB 1310 cures this anomaly. It states, “Every offense which is prescribed by any law of the state
to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.”
This simple change does not give people appreciably lighter sentences (unless you consider one day of a year appreciable), but does effectuate the petty crime exception as the law probably intended. Congress has made the immigration laws harsher and harsher over the last twenty years. A change for the better is quite unexpected. Not remarkably, it is not the federal government that made the change, but the State of California. Posted July 23, 2014.