On December 3, 2013, President Obama’s uncle, Onyango Obama, was allowed to become a permanent resident of the United States. News reports, as nearly always happens, are not entirely accurate in their explanation of events and the law (there is an old adage that the more a reader knows about a topic, the more a newspaper account is wrong), I will read between the lines and try to lay out what happened.
It appears Mr. Obama (the uncle), came to the United States in 1963 as a student. Once he stopped attending school, his student status lapsed and he became subject to removal. In the 1980’s he sought to remain in the United States through applying for permanent residence, but the application was denied because he lied on his forms about working – presumably he wrote that he did not work when he did. It is not said exactly what he applied for. As there is no mention of his having a spouse or children, it was probably not through marriage to a U.S. citizen or an adult (age 21 or older) United States citizen child that he sought adjustment of status. As the big legalization/amnesty program began in the late 1980’s, it is possible it was through amnesty that he sought residence and was denied for lying on the forms. If this was what happened, it was a pretty dumb move lying on the forms as among the requirements for the amnesty he sought was that he had been in the United States from before January 1, 1982, and that he be illegal. Covering up illegality would have been unnecessary or even counter-productive to getting granted amnesty.
Then it appears he was sent to immigration court in Boston in 2011 after an arrest for driving under the influence of alcohol. Reports are that he was ordered removed, though it is not clear why — why he was denied relief, including the minimal relief of voluntary departure. His case was appealed. Either while on appeal to the Board of Immigration Appeals or in a motion to reopen to the Board of Immigration Appeals after his appeal was dismissed, his case was remanded to the immigration court. A basis stated in the media was “ineffective assistance of counsel.” When an alien is prejudiced by poor legal representation, his case can be reopened or remanded by the BIA. It is not clear what the ineffective assistance was, but it could have been the prior counsel’s failing to seek the proper relief in immigration court.
The relief Mr. Obama could have sought was “registry,” which allows a foreigner who has been in the United States since before Janaury 1, 1972, to become a permanent resident provided that the person never was a permanent resident, maintained continuous residence in the United States, does not have certain criminal convictions, including drug convictions, and is a person of good moral character. INA § 249. Mr. Obama’s DUI is not a conviction that makes him ineligible for registry and a conviction for DUI would not render one a person lacking good moral character. See INA § 101(f).
An interesting thing about registry is that the current iteration became law in 1986. In 1986, a requirement that a person be in the United States since January 1, 1972, meant the person had to be here for 14 years. With the passage of time registry is of reducing utility, as now a person would have to show residence here for 42 years. In all that time, the person would have to have avoided removal proceedings, disqualifying criminal convictions or conduct, and had no other way of achieving a legal status, including the 1986 amnesty.
In this case, a curiosity to me is whether the ineffective assistance that led to reopening was the failure in 2011 to ask for amnesty. The immigration court’s governing regulations require that the immigration judge indicate potential available relief as discussed here. “The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing….” 8 CFR § 1240.11(a)(2). As the immigration judge in the case, Leonard I. Shapiro has been an immigration judge for more than 20 years, it seems unlikely he would overlook registry as a form of relief. More likely, Mr. Obama’s first attorney decided not to pursue it.
There does not seem to be any mysterious intervention from above to help Mr. Obama. He was eligible for registry and pursued it. Nothing indicates that when he was denied relief in the 1980’s, that he was placed in removal proceedings then. Reopening a proceeding after a lengthy period is difficult as motions to reopen are time barred (90 days), and while the time bar can be tolled (extended) based on ineffective assistance of counsel, there is a duty to discover and act on the ineffective assistance in a reasonably speedy fashion. Twenty-five years would have been a long time. Also, amnesty denials were not sent to immigration court for removal proceedings as the program was based on undocumented aliens turning themselves in to seek amnesty and few would have done it if turning oneself in could lead to removal. See, INA § 245A(c)(5).
It is true that with the agreement of the government, the BIA will reopen a case after the period allowed and that would have required the government’s doing something nice for Mr. Obama that it does not ordinarily do when there is a DUI in the case. However, as stated, there is no evidence of a deportation before 2011. Instead, it appears Mr. Obama was eligible and deserving of registry and though he could have sought it decades ago, it is a rare (now) but valid form of relief and he was eligible for it.
If anyone has additional facts to shed on what happened, please share. Posted December 8, 2013.