Ninth Circuit reminds the BIA of its real purpose in Singh v. Holder.

Sunday, November 23rd, 2014
By: Jonathan MontagJ.D.

The Board of Immigration Appeals and the many other immigration-involved agencies in the federal government sometimes remind me of the movie, the Bridge on the River Kwai. A recent decision, Singh v. Holder,  highlighted this. If you recall, in the Bridge on the River Kwai Alec Guinness engages in a battle of wills with the evil Colonel Saito about who is in charge of building a bride over the River Kwai. Colonel Nicholson, Guinness, forgets that his role in the world is not to build and protect a bridge for the Japanese, but to defeat them.

Immigration law is a complicated architecture of statutes piled up on top of each other with a large body of implementing regulations, and administrative practice memos, operating instructions, administrative decisions, administrative case law, and judicial case law all to be considered when adjudicating a person’s case. Agencies and bodies are then created or adapted to implement the statutes and regulations – agencies like the immigration court, Board of Immigration Appeals, Department of Justice, DHS, USCIS, ICE, and CBP, DOL …. The goal, of course, is the execution of the law with the goals of the law in mind and with broader principles such as consistent adjudication, maintaining family unity, and adherence to constitutional values like due process and equal protection.  Unfortunately the structure gets rigid. The agencies and bodies create their own rules and lose flexibility and sense in administering the laws intrusted to them. They create cultures of mean spiritedness and inflexibility not found in the laws themselves.

This is what happened in Singh v. Holder. The immigration system is confronted with a relatively unique, but not that unique fact pattern. A person, Singh, is ordered removed by one body, the immigration court, but is eligible for a green card from a different body, USCIS. The question is which will prevail. Will Singh be removed or given an opportunity to become a permanent resident. Without any intervention by the courts, because ICE executes removal orders and because ICE has the guns, ICE will prevail. Singh asks the BIA to reopen his case and the BIA says, essentially, “No can do. Our regulations don’t allow us to reopen cases because of factors outside of our jurisdiction.”

“Wait a minute,” the Court of Appeals said. Your purpose is not to uphold your own architecture of rules and regulations for their own sake. Like Colonel Nicholson, who was not in Indochina to show the Japanese about the indomitable spirit of the British people, but rather to defeat them, the BIA is not here to satisfy itself, but to fairly administer the immigration laws consistent with the values in the laws and Constitutional and American values in general.  Like Colonel Nicholson tearing up the wires set up to blow up the bridge, the BIA tore up the wires that allow a person eligible to become a permanent resident under the laws it administers to thwart the real goal – fairly and properly administering the law. Unlike in the movie, in Singh v. Holder, the BIA never came to its senses about what its real goals are. It was the Court of Appeals that fell on the plunger. The case is back at the BIA. Let’s hope the BIA now realizes what it has done and instead acts in conformity with its real purpose instead in getting mired in bureaucratic hindrances of its own creation. Posted November 23, 2014.


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