My theory – when the law gets too complicated, it goes away.

Sunday, May 27th, 2018
By: Jonathan MontagJ.D.

I have a theory. I think it applies to immigration law. I don’t know if it applies to American law generally. The theory is that when a point of law reaches a high degree of complexity, eventually the point of law goes away. The mechanics are usually the same. Some issue becomes contentious in immigration cases. As usual in an appellate case regarding a contentious legal issue, the court can either go with outcome A or B. The court makes its choice, let’s say A. Then another appellate court faces a different fact pattern related to the same legal issue and has to apply the choice of the first appellate panel. Making the decision fit takes a little casuistry, but that is what appellate courts do. Simultaneously, other circuit courts are struggling with the same issue. Some chose A and some choose B. Then these courts have to deal with a different fact pattern and have to make their initial choice fit. Then some court of appeals gets so wound up with trying to fit cases to the rule, they go en banc and change the rule, perhaps from A to B. Maybe, ingeniously, they even come up with a third outcome, C. Then the courts have to fit new cases with new fact patterns to outcome B and C. The cases dribble out from all the circuits with great feats of legal reasoning to make new fact patterns fit outcome A or B or C. And finally, the Supreme Court takes the issue off the table.

Here are four examples. In 1996, President Bill Clinton signed IIRIRA, the Illegal Immigration Reform and Immigration Responsibility Act. One thing it did was get rid of 212(c), a law that allowed for forgiveness for certain permanent residents who committed certain crimes. It was replaced with Cancellation of Removal (for Certain Permanent Residents). An important issue became whether 212(c) applied to crimes committed before the change in the law, .i.e. whether the change was retroactive. An issue in that case became “reliance.” In retroactivity analysis, an issue is whether a person reasonably relied on the old law in making his decisions. Say you build a swimming pool in your yard and after you do, the state legislature passes a law that requires that swimming pools have to have a 20 foot electric fence around it. Is that an unfair retroactive law? A question is whether you relied on the pre-fence rules when you put in your pool? If so, do you have to prove reliance? If so, how do you prove reliance?

In the 212(c) context, a person committed a crime that could have been forgiven under 212(c), but not under Cancellation of Removal. Did the person commit the crime under the impression that if he got caught, he could seek 212(c) relief? Or, more likely, did he plead guilty to a crime so he could seek 212(c) relief, i.e., did he rely on the existence of 212(c)? If so, how do you prove it? Courts were all over the place with this. Some asking whether a criminal alien really weighed the existence of 212(c) when he robbed the bank or took the drugs or spanked the child. Some wondering whether he really took a plea because of 212(c) eligibility when he was not really eligible for other reasons, but eligibility might ripen later. The cases became super complex, like this one. Ultimately, the Supreme Court, in INS v. St. Cyr, concluded that when a criminal alien pled guilty before 212(c) went away, “IIRIRA’s elimination of § 212(c) relief for people who entered into plea agreements expecting that they would be eligible for such relief clearly attaches a new disability to past transactions or considerations. Plea agreements involve a quid quo between a criminal defendant and the government, and there is little doubt that alien defendants considering whether to enter into such agreements are acutely aware of their convictions’ immigration consequences.”

While retroactivity issues remained, particularly when a person was found guilty by a jury, a mountain of court decisions went could go in the trash.

That was not the only 212(c)-related issue that had appellate courts all twisted up. Another was a technical issue in 212(c) jurisprudence. The laws of deporting people are really two separate sets of laws. There are rules for deporting people already inside the country, rules of deportability, and rules of not allowing the entry of people into the country, rules of inadmissability. They overlap to a great extent. As in all things legal, it is where they don’t overlap is where the “fun” begins. 212(c) was a law about inadmissibility. A permanent resident applying for admission to the United States who was inadmissible for certain crimes or conduct, could apply for forgiveness under 212(c). Yet, a permanent resident inside the United States could not seek the same forgiveness. Could it be that two people who committed the same offense would suffer completely different outcomes – forgiveness versus deportation – depending on whether they were caught at the border of caught inside the country? Would it be fair that a person facing certain deportation could take a quick trip to Tijuana or Niagara Falls and then come back to the border and thereby change his fate?

For more than seventy years, as discussed here, the courts of appeals wrestled with this. Complex court decisions were published where people inside the country could seek 212(c) relief if they were being deported for reasons similar to reasons people could be kept out of the country, called comparative grounds, so as not to violate laws against equal protection. Anomalous situations were litigated where immigration authorities could charge a person with a comparative ground, but instead charged the person with a ground of deportability that did not have an inadmissibility comparative ground. It became a wondrous house of cards. Then, in 2009, the Ninth Circuit threw it all out the window, saying it was perfectly rational to treat permanent residents seeking admission better than permanent residents inside the country who did not leave in Abebe v. Mukasey.

However, in an amazing turnabout, in 2011, the Supreme Court in Judalang v. Holder, threw out the Abebe decision and the entire comparative grounds jurisprudence formulated by courts since at least 1954. The Supreme Court held, “The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “relevant factors,” which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.”

Another forest of paper for seventy years of cases in the dumpster.

A third example is the modified categorical approach in determining if a person is deportable for a certain crime. Courts were faced with a dilemma. Certain crimes make a person deportable. The immigration laws provide broad categories of crimes, like controlled substance offenses, or theft offenses, or domestic violence offenses, or sexual abuse of a minor offenses, that subject one to deportability. The trick is to fit the specific crimes of the fifty states to these broad categories. Is the Alaska or California, or Wyoming burglary law or sexual abuse of a minor law really a deportable theft offense of sexual abuse offense? The courts create generic definitions of these broad categories of crimes and then tested whether the Alaska or California, or Wyoming conviction matches the generic definition. Sometimes this is very difficult. Sometimes, it is not clear if the state criminal statute matched the generic definition. If for example, the generic definition of sexual abuse of a minor did not include sex with a person older than 15, but the state crime included 16 and 17 year old, what then? Suppose you could tell from the court records that the victim was 14? Could an immigration judge consider that? What if it was not relevant to the judge or jury what the age was specifically? What if the document that showed the age was not part of the decision?

The tension lies in the fact that the appellate courts do not want immigration courts to re-litigate criminal cases to find additional facts. Immigration courts are not equipped to conduct mini-hearings about what an alien was convicted of. It is unfair to make an alien re-litigate a criminal case, sometimes many years old. It is also unfair to some for immigration courts to go behind plea deals designed to benefit the alien from removal and the government from conducting an expensive and time-consuming criminal trial.

Again, a mountain of cases in all the judicial circuits considered what the generic definitions were, what the elements of the state crime were, whether they matched, and what outside facts could be considered in determining not what the alien did, but what he was convicted of. Weary of aliens “walking” when they “clearly” did something deportable (the alien may have admitted the victim was 13 or he entered the store to steal something), the Ninth Circuit came up with a new test, in U.S. v. Aguila-Montes de Oca with its own complexities, to supercede all the old cases about determining what the conviction actually was. Explaining the problem, the court wrote, “The categorical and modified categorical frameworks, first outlined by the Supreme Court in Taylor v. United States [from 1990] … establish the rules by which the government may use prior state convictions to enhance certain federal sentences and to remove certain aliens. In the twenty years since Taylor, we have struggled to understand the contours of the Supreme Court’s framework. Indeed, over the past decade, perhaps no other area of the law has demanded more of our resources.”

Like with the comparative grounds jurisprudence, where the Ninth Circuit tossed decades of jurisprudence to then have it all shot down, the Supreme Court in Descamps v. United States  reversed Aguila-Montes de Oca and all the accretions to the rule that the immigration courts are stuck with the conviction documents and cannot fish around for outside facts. Descamps and some other decisions made it clear that all attempts to go outside the record of conviction and the elements that had to be found for the convictions were wrong. Once again, mountains of law were tossed out, including the Ninth Circuit’s attempt at clarification.

If you are not yet convinced of the viability of my theory, here’s one more example. The recent Sessions v. Dimaya decision about crimes of violence, which I recently discussed here. For twenty years courts have grappled with 18 U.S.C. § 16(b), defining a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” For twenty years courts have grappled over whether crimes without intent (like DUI) or that occurred by accident (accidental drowning a child), or by recklessness (vehicular manslaughter) are crimes of violence. Finally, in Dimaya, the Supreme Court admitted what we in the biz already knew, this stuff makes no sense. And the fourth heap of cases are now only of historical interest.

Like all great theories, its real use is how well it forecasts the future. What issues existing now are of such complexity that they need to disappear? The most clear one is defining what a crime of moral turpitude is. A moral turpitude crime is defined generically as a crime involving fraud or conduct that 1) is vile, base, or depraved and 2) violates accepted moral standards. The problem is what crimes are not vile, based, or depraved, or do not violate moral standards? This cannot mean serious crimes, as shoplifting is a crime of moral turpitude, which few would consider vile, based or depraved, compared to say vehicular manslaughter, which is not a crime of moral turpitude. If I told you that Laura Bush killed someone with her car, I bet you would be much more shocked than if you learned she stole a Hershey bar. (I know of no reports Mrs. Bush ever stole a Hershey bar).

As the late Judge Stephen Rheinhardt put it in a decision about moral turpitude  in 2010, “Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.

“Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, ‘Go figure.’”

Another issues is what happens if after the analyses discussed in Descamps and its progeny, a crime cannot be shown to be a deportable offense, but it also cannot be shown not to be a deportable offense. This issue is one the courts grapple with a lot. In a nutshell, certain types of waivers in the immigration laws are available to people who are not deportable for certain offenses. To be eligible for these types of forgiveness, it is the responsibility (burden of proof) of the alien to prove his eligibility – that he is not deportable for one of these offenses.

Suppose a person is in the United States without permission. He is deportable not because of a criminal conviction, but for being in the United States without authorization. To be eligible for forgiveness, he must prove he is not deportable for a host of crimes, including a theft offense. Now suppose he was convicted five years earlier of a crime that could be a theft offense or could not be. Say, for example, he was convicted of California theft, but the record is not clear whether he stole a television (a theft offense) or someone’s labor (not a theft offense). Or suppose he was convicted of burglary which is entering a building to commit a crime, but it is not specified whether the crime was stealing a television (a theft offense) or to deface an offensive poster (vandalism?). While he would not be deportable for theft or burglary as the conviction documents do not compel it, can he prove he did not commit these crimes where, in seeking forgiveness, he has to prove he did not commit a removable offense? Further, what should the immigration court do if regardless of what he did, the judge or jury did not have to decide if he was stealing a television or someone’s labor or vandalizing a poster, just that he was up to some sort of no good?

In Moncrieffe v. Holder, the Supreme Court found that when there was ambiguity in the conviction documents in a Georgia drug law (without fishing around for other documents), the conviction was not an aggravated felony, which would have made Mr. Moncrieffe deportable without eligibility for relief. The Court did entertain the possibility he could be deportable for a controlled substance violation that was not an aggravated felony but for which relief (forgiveness) was possible. The Court wrote:

Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. At that point, having been found not to
be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, to the extent that our rejection of the Government’s broad understanding of the scope of “aggravated felony” may have any practical effect on policing our Nation’s borders, it is a limited one.

One may think that Moncrieffe overruled all the burden of proof decisions addressing the complex issue of ambiguous convictions and eligibility for relief and the necessity of conducting mini-trials on what the alien did when he got convicted. One would think wrong. In Marinelarena v. Sessions, the Ninth Circuit concluded that all that “he still needs to seek forgiveness” stuff in Moncrieffe was mere dicta and because it is ambiguous whether the crime was an aggravated felony, the alien cannot meet his burden of proof and must be deported.

This issue is ripe to be erased based on my “too complicated to exist” theory.

Another issue that is of such great complexity that it needs to go away is the jurisprudence regarding “particular social group” a part of the asylum law, discussed here and here and here.

Unfortunately, because particular social group is fundamental to asylum law, is part of international asylum laws, and implicates issues of huge political importance (who can enter the United States fleeing persecution), this will not be an issue that the Supreme Court can make go away. Posted May 27, 2018.


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