The exceptions that prove the rules suck.

Sunday, June 20th, 2010
By: Jonathan MontagJ.D.

This week the media presented us with heart-jerking stories of undocumented aliens facing deportation followed by amazing intercessions. When I was a child I used to watch Superman with George Reeves on TV. I remember one scene, I think it happened a lot, where a man was about to be wrongly executed. Superman busted through a brick wall of the death chamber and stuck his arm in the switch just as the arm was being lowered to execute the victim in his electric chair. The immigration stories this week are reminiscent of Superman’s heroics.

One story was of a Harvard College student. News reports indicate that he was caught while trying to use his Harvard ID (apparently the lack of judgment at age 19 trumps the intelligence it takes to get into Harvard) to travel on an airplane from San Antonio, Texas, to Boston, back to Harvard where he just completed his freshman year. He was brought to the United States at the age of 4, presumably without inspection. He was arrested on June 7 and was scheduled for immigration court in July where he could ask for relief from deportation. The types of relief available to someone like this gentleman are usually:

1. Adjustment of status if he has a U.S. citizen spouse who can petition for him. A pre-condition to being able to adjust status is having been admitted or paroled into the United States. The news reports imply that the gentleman entered without inspection and there was no mention of a wife or fiancee. Thus this form of relief was not available to him.

2. Asylum and related relief such as withholding of removal at INA § 241(b)(3) . Asylum is available to an alien who has a well-founded fear of persecution on account of his race, religion, nationality, political opinion, or social group.  An asylum application ordinarily must be filed within one year of coming to the United States. INA § 208(a)(2)(B). The gentleman came long before a year ago. The one-year rule does not apply to more difficult forms of relief where he has to show that it is more likely than not he will be persecuted or tortured if he has to return home. Nothing in the articles indicates that this gentleman had these types of dire fear if he was returned to Mexico. Thus this form of relief was not available to him.

3. Cancellation of Removal for Certain Nonpermanent Residents is available to aliens who can show that they have lived in the United States for ten years, are virtually crime free (some crimes will not disqualify someone), and can show exceptional and extremely unusual hardship to a U.S. citizen parent, spouse, or child if the alien is deported. News reports do not indicate any qualifying relative. Thus this form of relief was not available to him.

A person like this ultimately would be compelled to leave the United States. Instead, this gentleman was granted deferred action, a little used form of relief beyond the authority of the immigration judge to grant. Hardly ever granted, it is safe to assume that it is political pressure or unusual humanitarian situations that causes immigration authorities to grant it.

A second case, reported in the New York Times, involves a man from Cameroon, married to a United States citizen who was arrested after his wife wrote President Obama asking for his help in allowing her husband to stay. After publicity, he was released from detention instead of deported based on an outstanding deportation order which was the result of a denied asylum application.

As the New York Times article reported, because of his outstanding deportation order only a request to reopen the case agreed to by Immigration and Customs Enforcement would have vacated the removal order so he could adjust status based on the marriage.

ICE declined to join in the motion to reopen. Here are some possible reasons why they would refuse to join in the motion:

1. The man entered the United States without inspection or parole and thus is unable to adjust status and thus reopening would be futile.

2. His asylum application was deemed frivolous making him ineligible for a visa based on marriage, or his asylum claim was so not-credible that ICE would not reopen as a matter of discretion.

3. He earlier sought an immigration benefit based on a fraudulent marriage, permanently barring him from immigration benefits. See INA § 204(c) [8 U.S.C. 1154(c)].

4. He was granted voluntary departure from an immigration judge and did not leave, the penalty for which includes ineligibility to adjust status for ten years. INA§ 240B(d)(B).

Again, because of publicity, ICE decided to release the man and most likely granted him deferred action.

Why are these two people afforded better treatment than the tens of thousands deported every year? As for the college student, if being a college student and having come to the United States at a young age were usually enough of a humanitarian concern, then thousands upon thousands of students would receive deferred action and it would be entirely unnewsworthy. In fact, arguably with his youth, good health, and intelligence, adapting to his home country, Mexico, would be easier than if he was older, sicker, and less bright. Also, at a young age and with no wife, his deportation would not cause hardship to a slew of dependants. On a purely humanitarian basis, many, many others would deserve deferred action and most get instead, Nada. Gar nichts. Rien du tout. Burkes.

As for the Cameroonian, if he killed someone or robbed a bank and his wife wrote President Obama and asked him to do something, and then he was arrested, would he be released? If every client I had who was arrested under unfair circumstances – wrongfully stopped by the police, introduced to the police by a school administrator, encountered when reporting a crime, encountered after being duped in a fraud – were then released, my caseload would be appreciably lighter.

What distinguishes these cases is the publicity. The humanitarian aspects of these cases is great, but no greater than tens and hundreds of thousands, if not millions, of other cases. If these cases move right-minded people to do the right thing or to agitate others to do the right thing, then it should also move people to do something about millions of others similarly situated. If the President or the Secretary of Homeland Security or the Attorney General wants a list of husbands denied the ability to be with their wives or of good kids being compelled to leave school because of immigration laws, and wants to do something about it, a fantastically long list could be provided. However, instead of trying to do a favor for the millions on this list, perhaps Congress should sit down and write laws that do not routinely end in results that shock the conscious. Then all people harmed by harsh laws will benefit and not just those who happen to catch the attention of Nina Bernstein of the New York Times or the deans at Harvard University.  Posted June 20, 2010.




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