If you leave, there’s no coming back.

Sunday, March 7th, 2010
By: Jonathan MontagJ.D.

In 2005, immigration lawyers were all embroiled in advocacy and outrage over REAL ID legislation pending in Congress. The media covered the major purpose of the bill, requiring the states to issue drivers licenses and other identification only to documented aliens. The fact that undocumented aliens now cannot get drivers licenses or renew existing licenses in most states is attributable to the REAL ID Act. Immigration lawyers were not that involved in ID issues. Rather there were other aspects of the law we were concerned about. Most important to us was fear that the REAL ID Act would end judicial review. Of lesser concern were provisions that raised the level of proof required of aliens seeking asylum or other benefits from an immigration judge.

Like what happens so often when new legislation or new court cases come out, pundits and scholars misapprehend what the real impact will be. In the case of REAL ID, the affect of the legislation was to ease access to judicial review – nearly every appellate court decision since 2005 finds its jurisdiction in the REAL ID Act. The proof issues have become the major issue since 2005, and several recent posts in this blog have addressed post REAL ID proof problems.

Similarly, appellate court decisions that sometimes appear to fundamentally change how immigration law operates are not noticed and decisions that we fear will change everything, don’t seem to make any impact at all. One case that I believe is a stealth game changer, not necessarily because of the numbers of people affected by the case, but by the conceptualization it destroys, is Hassan v. Chertoff. Here’s what happened to Mr. Hassan. He applied for adjustment of status to that of a lawful permanent resident. The case does not say under what basis. It could have been through marriage to a United States citizen or some other family member or through his employment or investments or any number of other reasons. The fact that we do not get these facts is a foreshadowing that he is going to lose his case.

When an alien applies for permanent residence in the United States he has certain rights. Most important is that if he is denied, he can get his case re-heard in immigration court and can appeal a denial there to a higher administrative tribunal, the Board of Immigration Appeals (BIA), and in some cases [and thanks to the REAL ID Act] to a court of appeals. The law indicates that when an alien applies for adjustment of status, leaving the country causes the application to be abandoned. However, the law, in many cases, allows the alien to leave the country while the case is pending by first applying for and receiving an advance parole document. Mr. Hassan applied for and received an advance parole document.

The government accused Mr. Hassan of having links to terrorists. In a case like this, it is particularly beneficial to the alien that he can have access to the immigration court and the BIA, because it is not unusual that assertions of terrorist links are made of very thin cloth. In an amazing coincidence, the Hassan case informs us, Mr. Hassan traveled outside of the country and while he was away, his case was denied. The case facts share that he traveled to Saudi Arabia, another foreshadowing that he is going to lose. When he got back to the country and tried to enter with his advance parole document, he was told, “Sorry, pal. The advance parole allows you back in when you have an adjustment of status application pending. You do not have an adjustment of status application pending any longer, so you ain’t coming back.” He was ordered deported at the airport and presumably sent home. Having been sent home, he cannot go to immigration court and seek review of the denial of the adjustment of status application.

Mr. Hassan sued in federal district court saying two things: 1) I am supposed to be allowed back into the country to see an immigration judge, according to 8 C.F.R. § 1245.2(a)(1)(B).  2) The government had no right to deny my adjustment of status based on the flimsy evidence it had about my associations with terrorists. [I do not know Mr. Hassan and do not know if he had associations with terrorists or not and what the nature of the associations were. I think if they were bad, the court would have told us what they were. It is not like they were bending over backwards to protect his privacy.]

The Court of Appeals concluded that the advance parole expired when his case was denied. The fact that the amazing coincidence that his case was denied while he was outside of the country and the result was his inability to seek administrative review of the decision did not enter into the decision. The fact that all the government needs to do when it has a problem case is wait until the applicant leaves the country and then deny the case and then exclude and deport the alien when he shows up with this advance parole document also did not enter into the decision.

As for the second issue, the adequacy of the evidence that Mr. Hassan consorted with terrorists, the court concluded that while administrative courts have jurisdiction to review such issues, the judicial courts lack jurisdiction to consider them.

So, in light of Hassan, if you are an applicant for permanent residence and the government does not like you, forget about burying your grandmother, going on a business trip, making a religious pilgrimage (The hajj is to Saudi Arabia. Could that have been the purpose of Mr. Hassan’s trip there?), or even taking a vacation, as all the government has to do is hurry up and deny your case while you are gone and then when you come back, they can just deport you. The Hassan case says that is fine no matter how strong your family, property, and professional ties are to the United States, how long you have been here, or how many layers of review of an arbitrary decision you would have had if you never left.

It was not like the court had to decide the case this way. It could have easily held that concomitant with an adjustment of status application is the right to a review of a denial of it in immigration court. Until that right is either exhausted or waived, an alien with a valid advance parole document should be deemed an applicant for adjustment of status and allowed to re-enter the United States with the advance parole document. Otherwise, tha applicant’s due process right to administrative review is denied. Now that would have been a nifty decision and one that immigration practitioners would have assumed was the case before Hassan.  Posted 03/07/2010



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