There were a lot of developments in immigration law this year. In the political sphere, the Trump Affect has moved the Republican Party and many Americans decidedly against immigration reform and in favor of severe risk-avoidance policies. Recent changes to the Visa Waiver program are an immediate manifestation. Efforts to restrict refugee admissions is another. The Visa Bulletin now has filing dates as well as processing dates, meaning every month one must check not only if a priority date (the date a visa petition gets on the wait list) is current (ready for visa issuance) but when before it is current an application for a visa can be filed. As difficult as it has been for the government to forecast priority date movement, it is quite daring to make another prediction about their movement in deciding when green card application filing can start for an unripe petition. Within a few weeks of starting the experiment, the government had to withdraw its first filing-date posting. The Supreme Court doubled down on the Consular Noreviewability Doctrine – the doctrine that federal courts cannot consider the propriety of State Department visa issuance decisions.
In choosing what to include in a top five listing, I chose developments that would shock someone who took a year sabbatical from immigration law work and then came back to work.
1. Gutting of criminal immigration laws
The Supreme Court’s decisions in Moncreiffe and Descamps a few years back and appellate decisions like Rendon are now resulting in huge numbers of criminal statutes not matching close enough to federal removal statutes to render a person removable. When shoplifting is not a theft crime, child molestation is not a sexual abuse crime, and illegally possessing a gun is not a firearms offense, we know we are living in a brave new world.
2. Prosecutorial discretion
When President Obama announced prosecutorial discretion initiatives in late 2014, skeptics, like me, believed the bureaucracy would ignore the memos and carry on as normal. Au contraire. ICE Chief Counsels are agreeing to closing cases and immigration judges are back-burnering all types of cases for all types or reasons. When an attorney opens a new removal case these days, he has no idea if it will be finally resolved in his lifetime. For those who believe it is sad when the United States removes a person with strong ties to the United States, including immediate family, there is markedly less sadness.
3. Asylum program implosion
With waives of asylum seekers and refugees this year, first from South and Southeast Asia, then the Middle East, Cuba, and South America, the systems in place to deal with them have imploded. Asylum applications have been languishing and will remain languishing for years because no one is available to adjudicate them. Families relying on adjudication so they can bring their spouses and children to safety instead face multiple years of separation. Immigration court dates are set for the remote future, postponed time and time again, or just closed without resolution. If you want to remain in a legal process for years and years to stave off removal, applying for asylum has turned into a leading way of doing it.
4. The demise of mandatory detention
In 2002, the Supreme Court, buying a bunch of statistical truthinesses, held that mandatory detention of aliens being deported was Constitutional. Courts of Appeals, a decade later, seeing just how slow the system really works, have been whittling away at the mandatory detention statutes. In the 9th Circuit, nearly every detainee gets a bond hearing after six months – with the burden on the government to prove release is not warranted. Laws mandating detention for people when released from criminal custody have been interpreted to mean here and here immediately after release, stopping the practice of holding aliens in detention for months and years while fighting their cases for crimes committed years earlier. Unless the Supreme Court intervenes, this obscenity is withering away.
5. DAPA and DACA II remain on hold
A backdrop to everything happening in immigration law this year was litigation over the Presidents plans to grant Deferred Action to many parents of citizens or permanent residents and more children who entered the country and completed high school. The delays, based on litigation commenced in Texas and now at the Supreme Court, may run out the Obama presidency clock. The delay has given thoughtful people the chance to consider what happens when the President has nearly plenary authority to enforce immigration law. If a President Obama can give nearly everyone Deferred Action, what would stop a President Trump from giving no one Deferred Action? I expect in the next years there will be strange bedfellows on all sides of this debate.
Posted December 27, 2015.