A net Sum v. Holder game

Sunday, May 9th, 2010
By: Jonathan MontagJ.D.


I am often amazed how diligent the judges of the Ninth Circuit Court of Appeals are in handling immigration cases. Though I often lament about how they got it wrong, failing to understand the bigger immigration context of their decision (like in the advance parole and visa waiver decisions discussed in the past), still this is a rather arcane and unsexy area of law for an appellate judge to have to be spending so much mental energy. They are compelled to learn about immigration law because so much of their dockets are filled with immigration cases, when I imagine they would much prefer to be dealing with the hefty constitutional questions I am sure they imagined they would be grappling with as appellate judges. Thinking they would spend their time on interesting free speech or even thorny search and seizure issues, they instead grapple with whether some anonymous alien should be deported or not. Of course it is big stuff to the people involved, and as a nation of immigrants, it involves a lot of people.

Another thing I wonder about is how they know that a decision is big or not. A lot of times, it is hard for anyone to see which case is going to have broad repercussions. And without constant feedback from the field – and I think judges, by definition of not being allowed to gather facts on their own and often compelled to rely of the “four squares” of the facts and law before them in making decisions – how can they know the ramifications of what they decide? Yet sometimes they do.

A recent interesting and extremely, extremely important case proves that they do. It is Sum v. Holder, issued on April 23, 2010. The case is confronts the issue of what is an “admission.” The definition of admission is very important in immigration law. To become a permanent resident while in the United States, a process referred to as adjustment of status, requires, among other things, having been admitted or paroled. Parole is easy to spot. Admission is not so easy. Becoming a permanent resident while in the United States is important because the alternative, leaving and obtaining a permanent residence visa from abroad, is time consuming, expensive, disruptive, and because of laws that punish aliens who leave the country after being in the United States without permission (either their permission to be here expired or they entered without permission), often futile.

In a case in 2008, Orozco v. Mukasey, a Ninth Circuit panel concluded that an admission for purposes of adjustment of status had to be a “lawful admission.” This meant that the mechanical admission into the United States, meaning passing through a port of entry, a land or sea inspection point or an airport, and making yourself available for inspection (not hiding in the trunk, for example) was not enough. The admission needed to be lawful in the sense that the officer did not make a mistake or had he known more, would not have let the person in.

The Orozco decision was a departure from the previous understanding of the law defined by the Board if Immigration Appeals in its 1980 Matter of Areguillin. The Orozco decision was vacated soon after it was issued for some technical reason – not because the panel regretted the decision. That nominally left Matter of Areguillin still standing, but for all the reasons the Orozco overturned Matter of Aregullin, the specter haunted immigration practitioners that USCIS and immigration judges would adopt the reasoning of Orozco and adopt the “lawful admission” definition of “admission.”

Fortunately, two years later, Sum was published, the reasoning of Orozco was repudiated, and Matter of Areguillin reaffirmed. The Sum court concluded that an admission means the mechanics of admission regardless of the underlying propriety of the admission. The case was reaffirmed the way it seems to me appellate judges, especially “conservative” ones like to, by denying a case. Though Sum is a big victory for immigrants, on the scorecard of the lawyers for Sum, the case has to be scored a loss. By denying Sum his victory by rejecting the decision in Orozco, the rest of us reap the benefits of the risk that aliens would have to prove their admission was “lawful” before being allowed to adjust status.

One brief word about the problem with showing an admission had to be lawful. One might think that it is not such a arduous burden. If a person entered “illegally,” maybe the punishment of permanent banishment from the country fits the bill. I will sidestep that philosophical question and just mention some scenarios where a lawful admission doctrine would pose a burden:

1. A child is waived in and now is a married adult with her own family whom she risks being separated from for many years;

2. A person enters with a tourist visa and years later must prove what her intentions were at the time she came in – was she purely intending to violate her visa, was she unsure, did she change her mind after she came? Short of a Vulcan Mind Meld, how can she prove her intentions many years ago?

3. A person comes to do a job with a proper visa and when she gets here, finds out the company folded. Did she know this when she came? Did she suspect it? Should she have suspected it? Should she have just turned around and left when she found out? What did the employer say – “There is definitely no job ever,” or, “Stick around and I will hire you back next, week month, year?”

4. The person thought her papers were in order, but her financial sponsor was a dollar short in the affidavit of support. Would that render her admission “unlawful.”

These nettlesome problems are no longer a concern after Sum. To me that is a good thing. There are still plenty of things to worry about.

One final caveat — for practitioners. In some places the law explicitly requires a “lawful admission.” When the law is explicit, Sum does not apply.

Posted May 9, 2010.



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