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  The Matter of Rodarte Roman decision may even have been superseded by subsequent legal interpretations.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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Lawyers, like children, complain when things are unfair. Children complain to their parents. Lawyers complain to appellate judges. Parents respond, “Life’s unfair,” which acknowledges the inherent unfairness in life, but does not repair the unfairness. Complaints in the legal world substitute the word “due process” for “fair.” Courts, when dealing with these due process claims, do not acknowledge unfairness and often respond, “What you are complaining about did not violate due process.” Same result.

Practitioners before any adjudicative body know that a lot depends on who you get as your “decider.” Practitioners know the result is often a function of whom your judge is. In appellate practice, it is not unusual to know the result based on who the panel of judges hearing the case is composed of. In the immigration court setting, you often know what is going to happen based on the judge you get. On appeal, you can often guess on your chances of success based on who hears your case. This is not always so. There is enough variation around the mean to keep one guessing and hoping. Sometimes the “worst” judge will give you the “best” result and the “best” judge will give you the “worst” result, but more often, you know what is going to happen in advance.

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British actor, comic, author, singer, et al., Russell Brand, who is also the husband of Katy Perry, has suffered eleven arrests according to media reports, I can find no information about the final disposition of these arrests, i.e., what he was actually convicted of. Media reports include two arrests for shoplifting and several marijuana arrests, including one for cultivating marijuana. Interviews of him also contain admissions to his having been a drug addict.

Assuming some of the reported arrests led to convictions, and even without convictions, assuming he committed the acts involved in some of the arrests and assuming his admissions to drug addiction were sincere and procedurally sufficient, he can never become a permanent resident of the United States.

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Much has been written  and adorably dramatized by me and others about the new prosecutorial discretion policy announced by President Obama and his administration. Despite continued skepticism in the media, the policy is being boldly implemented, at least in San Diego, where I practice. Pilot programs are underway in Baltimore and Denver and files are being reviewed nationwide.

Implementation is being carried out by the Office of Chief Counsel (OCC), a.k.a., Immigration and Customs Enforcement’s Office of the Principal Legal Advisor, ICE’s lawyers who prosecute removal cases for the Department of Homeland Security. Criticism of DHS is chiefly because law enforcement officers at ICE and Customs and Border Protection (CBP) appear to be arresting and placing aliens in removal proceedings as usual, and U.S. Citizenship and Immigration Services (USCIS) is similarly instituting removal proceedings as before the new policy was announced (though there is a new memo to guide USCIS in light of the new policy). Because of this, the burden falls on the OCC to evaluate cases for prosecutorial discretion when cases reach the litigation stage, while for officers in the field, it is business as usual. This is supposed to change, but largely it has not yet.

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