Faddism, free markets, and immigration law.

Sunday, January 2nd, 2022
By: Jonathan MontagJ.D.

For every action there is an equal and opposite reaction, taught Sir Isaac Newton; a concept that states a law of physics that probably does not mean as much as we think in non-physics situations. In immigration law, often actions prompt wild, usually-futile reactions.
A recent example is reactions to the Pereira case, discussed here and its progenitee, Niz Chavez, here. Pereira, readers may recall from here, is the Supreme Court decision about the stop-time provision of Cancellation of Removal introduced in a 1996 immigration law, IIRAIRA, and its relationship to an incomplete Notice to Appear. After the Supreme Court found that an incomplete Notice to Appear did not stop the accrual of time for Cancellation of Removal, attorneys grasped onto the idea that a faulty Notice to Appear meant a faulty removal hearing, which meant that any lost removal case commenced with an incomplete Notice to Appear should be reopened. As a great many, perhaps most, Notices to Appear have been deficient since IIRAIRA, theoretically 25 years of immigration court decisions are subject to challenge. Applying that logic, however, overlooks that not all immigration court cases are lost and 25 years of victories could also be reopened at the request of the government. The idea that the Supreme Court would essentially vacate 25 years of the work of the immigration courts, Board of Immigration Appeals, and the immigration cases in federal courts of appeals, and even the Supreme Court (one would suspect that holdings based on a removal proceeding illegally commenced would have to be withdrawn), is a fanciful hope, yet it did not stop armies of attorneys from filing motions to reopen for clients.

And so, Pereira Motions to Reopen became a fad. Attorneys file them for many reasons. When everyone else is doing something, it can become, as med-mal attorneys are aware, the standard of care. At what point is not doing what everyone else is doing malpractice? Further, Pereira motions are easy to prepare – four sentences: 1) Non-citizen A was issued a Notice to Appear that was incomplete. 2) Non-citizen A was ordered removed; 3) The removal proceeding is invalid because of the incomplete notice to appear; 4) Proceedings should thus be reopened. Since little happens without money, filing these four-sentence motions can become quite a profit center. Finally, when some good weird thing happens which appears to be outside of the law, it creates a precedent that makes it hard to refrain from making the same move.

Another recent example is the reaction to the Afghanistan evacuation fiasco. Attorneys flocked to file applications for humanitarian parole as if they are easy to get and have been learning that they are not. Yet, suppose USCIS really did open the Gravy Train and give away humanitarian paroles, how would you feel about missing out?

A confounder to strategic planning in immigration law is that every once in a while some miraculous bit of generosity and kindness by some adjudicator somewhere (and a kind or lazy prosecutor who does not appeal) makes the impossible seem possible. If an Afghan fleeing Afghanistan with a weak case for humanitarian parole is granted humanitarian parole, shouldn’t anyone with a stronger claim apply?

There are lots of areas where changes in the law or conditions on the grounds coupled with the kindness of immigration adjudicator strangers causes runs on applications for benefits with dubious eligibility and unlikely success in being granted. The pressures are hard to resist – everyone’s doing it could mean it is ineffective assistance to not try, one person’s luck means the impossible is possible (as in Dumb and Dumber, “So you’re telling me there’s a chance.”)  And there is money to be made.

These type of situations are far from rare. In future postings, I will explore other times where an outlier outcome causes misplaced expectations for desperate people. Posted January 2, 2022.


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