Vasquez case a start on the way out of a bad turn.

Sunday, May 16th, 2010
By: Jonathan MontagJ.D.

An interesting phenomenon in appellate decisions is that a court decision, often a higher court, establishes a certain principle of law of general application and then the lower courts are “stuck” applying this principle despite the apparent illogic of absurdity of its application. Because lower courts must adhere to the rulings of the higher court, unless the lower court can cleverly distinguish its situation from the decision of the higher court, the lower court is compelled to issue a decision that to the vast majority that are not sensitive to these things, seems unfair.

One decision that has taken courts down a path of despair is a 1975 Supreme Court decision, Reid v. INS.  In Reid, a husband and wife entered the United States by (knowingly) falsely claiming they were United States citizens. Immigration officials found this out and initiated proceedings to deport them. The couple, as a defense, sought a waiver of deportability for those who enter the United States fraudulently. The law allows for a waiver based on family ties to someone who may have entered the United States years earlier by fraud, but now is established here and the harm to himself and his family outweighs the seriousness of the fraud. However, immigration officials did not charge the Reids with deportability for entering by fraud. Rather, they charged the Reids with deportability for entering the United States without inspection. The theory was that when a person comes to a border and says he is a United States citizen, he is not carefully inspected, while a person who comes and says he is not a United States citizen is carefully inspected to make sure his visa or other authorization to enter is in order and he is not subject to inadmissibility for criminal conduct, other unlawful conduct, or immigration violations. The Supreme Court concluded that the Reids could not ask for a fraud waiver because they were not deportable for fraud, but rather for entering without inspection. They thus had no relief from deportation – even though it was precisely the fraud that was the “cause” of having avoided inspection. The Supreme Court, in a decision written by the Justice Rehnquist, was concerned that an alien could transform any immigration violation into a fraud – “I overstayed my visa and am deportable but intended to when I entered, so I entered with fraudulent intent and therefore deserve a waiver.” The decision certainly nipped that theory in the bud.

Nonetheless, there is something quite troubling about immigration officials being able to re-define conduct in such a way as to avoid the ability to seek relief. Just as aliens and their lawyers will work to find guilty pleas to avoid deportability for certain conduct – trespassing instead of theft, or battery instead of domestic violence – immigration officials find ways of charging deportability in a way that relief is unavailable. This principle is most evident in the old 212(c) cases. The relief statute, 212(c), allowed for waivers of grounds of inadmissibility for certain returning permanent resident aliens. Courts felt that it was absurd that relief was available for returning aliens but not aliens who never left the country and expanded the relief to permanent residents who never left the country.

However, the courts kept the distinction between grounds of inadmissibility and grounds of deportability. Thus, aliens who never left the country could only be eligible for 212(c) if their ground of deportability had a comparative ground to a charge of inadmissibility. Based on the Reid theory, clever immigration prosecutors will find a charge of deportability that does not have a comparative ground. For example, instead of charging an alien with deportability for a crime of moral turpitude, which is also and a ground of inadmissibility, the government will charge the alien with having committed an aggravated felony, which has no comparative ground. Thus, the identical conduct could render one alien inadmissible have relief available while another, charged differently, would result in no relief.

While some jurists are satisfied with this result, others are apparently troubled by this Reid-inspired absurdity, and seek ways to work around it. In an interesting recent case, Vasquez v. Holder, the court was able to find subtle differences in the language of the statutes to defeat the Reid approach to seeking a fraud waiver based on accusations of marriage fraud.

In Vasquez, an alien was accused of obtaining her permanent residence in 1995 by fraud – by marrying a United States citizen just to get permanent residence. She subsequently divorced, re-married another United States citizen with who she had a son, born in 1999, who is an asthmatic. Immigration officials first charged Ms. Vasquez with deportability for having been inadmissible at time of her entry, INA § 237(a)(1)(A), and charging that she was inadmissible at time of entry because she procured a visa by fraud, INA § 212(a)(6)(C)(I). Ms. Vasquez expressed her intention to seek a fraud waiver. However, then immigration officials filed a new charge, INA § 237(a)(1)(D)(i), as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated. Now, with no facially obvious fraud element, the immigration prosecutors argued and the immigration judge and Board of Immigration Appeals agreed, based on Reid, there was no fraud in the charge and thus no fraud waiver available. Like in Reid and the 212(c) cases, identical conduct could be waived or not waived depending on the deportability charge.

Assuming the judges deciding Vasquez found it absurd that just by charging Ms. Vasquez one way and not another she could not seek a waiver, how could the court undo the damage of Reid. Easy – by carefully parsing the waiver statute. The waiver, found at INA § 237(a)(1)(H), states:

The provisions of this paragraph [237(a)(1)] relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D) [participants in Nazi persecution, genocide, or torture]) who — (i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and

(ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.

The court found two reasons why this fraud waiver applied to the ne 237(a)(1)(D) charge. First, the waiver statute discusses provisions of 237(a)(1). There are six subsections to 237(a)(1), sections A, B, C, D, E, and G, and if Congress wanted only A to apply, it would not have written provisions in the plural. Second, the statute refers to provisions relating to fraud. Relating to is defined broadly in immigration law as descriptive of behavior that is included regardless of whether this behavior is specifically charged. Thus, any section of 237(a)(1) that relates to fraud is included in the waiver. It is quite obvious that Ms. Vasquez’s conduct related to fraud, or as the Vasquez court wrote, “The two grounds [fraud and having the condition on residence expire because the marriage was fraudulent] are thus essentially coterminous and certainly ‘relate to’ one another.”

Just as Reid led to a slippery slope of absurd results, let’s home Vasquez leads a slippery slope back to rationality. Some people deserve to be deported, but at least let them seek all the relief they may be eligible for before showing them the door and not construct legally fictitious, irrational barriers to relief.

An interesting phenomenon in appellate decisions is that a court decision, often a higher court, establishes a certain principle of law of general application and then the lower courts are “stuck” applying this principle despite the apparent illogic of absurdity of its application. Because lower courts must adhere to the rulings of the higher court, unless the lower court can cleverly distinguish its situation from the decision of the higher court, the lower court is compelled to issue a decision that to the vast majority that are not sensitive to these things, seems unfair.

One decision that has taken courts down a path of despair is a 1975 Supreme Court decision, Reid v. INS. http://supreme.justia.com/us/420/619/case.html In Reid, a husband and wife entered the United States by (knowingly) falsely claiming they were United States citizens. Immigration officials found this out and initiated proceedings to deport them. The couple, as a defense, sought a waiver of deportability for those who enter the United States fraudulently. The law allows for a waiver based on family ties to someone who may have entered the United States years earlier by fraud, but now is established here and the harm to himself and his family outweighs the seriousness of the fraud. However, immigration officials did not charge the Reids with deportability for entering by fraud. Rather, they charged the Reids with deportability for entering the United States without inspection. The theory was that when a person comes to a border and says he is a United States citizen, he is not carefully inspected, while a person who comes and says he is not a United States citizen is carefully inspected to make sure his visa or other authorization to enter is in order and he is not subject to inadmissibility for criminal conduct, other unlawful conduct, or immigration violations. The Supreme Court concluded that the Reids could not ask for a fraud waiver because they were not deportable for fraud, but rather for entering without inspection. They thus had no relief from deportation – even though it was precisely the fraud that was the “cause” of having avoided inspection. The Supreme Court, in a decision written by the Justice Rehnquist, was concerned that an alien could transform any immigration violation into a fraud – “I overstayed my visa and am deportable but intended to when I entered, so I entered with fraudulent intent and therefore deserve a waiver.” The decision certainly nipped that theory in the bud.

Nonetheless, there is something quite troubling about immigration officials being able to re-define conduct in such a way as to avoid the ability to seek relief. Just as aliens and their lawyers will work to find guilty pleas to avoid deportability for certain conduct – trespassing instead of theft, or battery instead of domestic violence – immigration officials find ways of charging deportability in a way that relief is unavailable. This principle is most evident in the old 212(c) cases. The relief statute, 212(c), allowed for waivers of grounds of inadmissibility for certain returning permanent resident aliens. Courts felt that it was absurd that relief was available for returning aliens but not aliens who never left the country and expanded the relief to permanent residents who never left the country. However, the courts kept the distinction between grounds of inadmissibility and grounds of deportability. Thus, aliens who never left the country could only be eligible for 212(c) if their ground of deportability had a comparative ground to a charge of inadmissibility. Based on the Reid theory, clever immigration prosecutors will find a charge of deportability that does not have a comparative ground. For example, instead of charging an alien with deportability for a crime of moral turpitude, which is also and a ground of inadmissibility, the government will charge the alien with having committed an aggravated felony, which has no comparative ground. Thus, the identical conduct could render one alien inadmissible have relief available while another, charged differently, would result in no relief.

While some jurists are satisfied with this result, others are apparently troubled by this Reid-inspired absurdity, and seek ways to work around it. In an interesting recent case, Vasquez v. Holder, http://www.ca9.uscourts.gov/datastore/opinions/2010/04/19/05-73714.pdf the court was able to find subtle differences in the language of the statutes to defeat the Reid approach to seeking a fraud waiver based on accusations of marriage fraud.

In Vasquez, an alien was accused of obtaining her permanent residence in 1995 by fraud – by marrying a United States citizen just to get permanent residence. She subsequently divorced, re-married another United States citizen with who she had a son, born in 1999, who is an asthmatic. Immigration officials first charged Ms. Vasquez with deportability for having been inadmissible at time of her entry, INA § 237(a)(1)(A), and charging that she was inadmissible at time of entry because she procured a visa by fraud, INA § 212(a)(6)(C)(I). Ms. Vasquez expressed her intention to seek a fraud waiver. However, then immigration officials filed a new charge, INA § 237(a)(1)(D)(i), as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated. Now, with no facially obvious fraud element, the immigration prosecutors argued and the immigration judge and Board of Immigration Appeals agreed, based on Reid, there was no fraud in the charge and thus no fraud waiver available. Like in Reid and the 212(c) cases, identical conduct could be waived or not waived depending on the deportability charge.

Assuming the judges deciding Vasquez found it absurd that just by charging Ms. Vasquez one way and not another she could not seek a waiver, how could the court undo the damage of Reid. Easy – by carefully parsing the waiver statute. The waiver, found at INA § 237(a)(1)(H), states:

The provisions of this paragraph [237(a)(1)] relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D) [participants in Nazi persecution, genocide, or torture]) who — (i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and

(ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.

The court found two reasons why this fraud waiver applied to the ne 237(a)(1)(D) charge. First, the waiver statute discusses provisions of 237(a)(1). There are six subsections to 237(a)(1), sections A, B, C, D, E, and G, and if Congress wanted only A to apply, it would not have written provisions in the plural. Second, the statute refers to provisions relating to fraud. Relating to is defined broadly in immigration law as descriptive of behavior that is included regardless of whether this behavior is specifically charged. Thus, any section of 237(a)(1) that relates to fraud is included in the waiver. It is quite obvious that Ms. Vasquez’s conduct related to fraud, or as the Vasquez court wrote, “The two grounds [fraud and having the condition on residence expire because the marriage was fraudulent] are thus essentially coterminous and certainly ‘relate to’ one another.”

Just as Reid led to a slippery slope of absurd results, let’s home Vasquez leads a slippery slope back to rationality. Some people deserve to be deported, but at least let them seek all the relief they may be eligible for before showing them the door and not construct legally fictitious, irrational barriers to relief.  Posted May 16, 2010

 

 

 

 

 

 

 

 


 

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