According to INA § 212(a)(6)(C)(ii)(I), “[a]ny alien” who makes a false claim to United States citizenship “for any purpose or benefit under this [Immigration and Nationality] Act or any Federal or State law is inadmissible.  There is no waiver to this ground of inadmissibility, thus making it a permanent bar to admission to the United States.

According to INA § 212(a)(9)(C)(i)(I), “[a]ny alien”  person who has accrued more than a year of unlawful presence, departs, and then comes back, or tries to, without being admitted, i.e, sneaks back or tries to sneak back, is inadmissible. Only after waiting ten years outside the United States and then applying for and receiving special permission to come back can a person be admitted to the United States. This bar is called the “permanent bar.”

Suppose a child made a false claim to United States citizenship or a child was in the United States illegally, departed and then returned, would these bars still apply?  On the one hand, the words “any alien” mean “any alien.” Case closed. On the other hand, if a child is put up by an adult to tell an inspector that he or she is a United States citizen or told to hand an inspector a document that says the child is a United States citizen, does a child have the legal capacity to commit this fraud?  If a child is brought back and forth across the border illegally, does the child have the ability to control his movements so that he must face a permanent bar as a result. Does a child have the capacity to say to his parent, “Mother, I prefer not to cross the border as I have accrued an aggregate of more than one year of unlawful presence, so allow me to remain in my native land and I will fend for myself as you and the rest of my family traverse the border surreptitiously and leave me all alone?” Hardly not.

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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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