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 Since then, the Ninth Circuit has superseded the decision with a new one, Carrillo de Palacios II.

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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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