Immigration Law, Policy & Politics : Southern California Immigration Lawyer & Attorney : Carlos Batara Law Firm : Riverside, San Diego, Los Angeles

Due process, a cornerstone of American jurisprudence, cannot be applied selectively.  Even if the beneficiaries are immigrants who have already been deported.

Aggravated Felonies Under IIRAIRA

Until 1996, most lawful permanent residents (LPRs) facing deportation due to criminal convictions were entitled to a merits hearing at immigration court.  An immigrant's positive equities were balanced against the nature of an immigrant's convictions. It was possible to win judicial forgiveness and a second chance to remain lawfully in the United States. 

This changed when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).  Many minor non-violent offenses, deemed misdemeanors in state court, were designated as aggravated felonies for immigration purposes.  And aggravated felonies lead to automatic deportation orders. 

The Supreme Court Clarifies The Misdemeanor-Felony Distinction

In Carachuri-Rosendo v. Holder, the Supreme Court slammed the government's blurring of the misdemeanor-felony distinction.  

A lawful permanent resident, Carachuri-Rosendo had lived legally in the U.S. since he was five years old.  He had committed two misdemeanor drug possession offenses.  For the first, possession of less than two ounces of marijuana, he spent 20 days in jail.  For the second, he pleaded nolo contendre to possession without a prescription of one tablet of Xanax, a common anti-anxiety medication, and received 10 days in jail.

After the second conviction, he was deported for having committed the aggravated felony of "illicit trafficking in a controlled sentence."

A unanimous Supreme Court held the government's interpretation that minor drug possession offenses constitute aggravated felonies was counter-intuitive.

"Congress," wrote Justice Stevens, "like Humpty Dumpty, has the power to give words unorthodox meanings."

But the English language, he added, "tells us that most aggravated felonies are punishable by sentences far longer than 10 days, and that the mere possession of one tablet of Xanax does not constitute trafficking."  

The Impact Of Flawed Deportations 

Following the Carachuri-Rosendo decision, 26 legal rights organizations have asked the government to implement procedures allowing immigrants - improperly denied the opportunity to defend themselves at court and sent back to their countries of origin - to reopen their cases. 

If successful, they would be able to return and live legally in the U.S.

Recently, in "For Those Deported, Court Rulings Come Too Late", New York Times reporter Nina Bernstein shared the plights of three former LPRs, also convicted of minor drug offenses, who might benefit from new reopening procedures:

• Vincenzo Donnoli, 51, had lived in the U.S. since the age of nine.  He ran a landscaping business and had five children.  He was deported to Italy after two misdemeanor convictions, one in 1988 and the other in 2006.
• Seweryn Smieciuch, 27, was a bricklayer deported to Poland.  He had entered the U.S. at the age of ten, when his parents won the green card lottery and moved to Brooklyn in 1993.  He spent two days in jail.
• Damon Franklin Spence, 35, had lived in the U.S. since he was 11 years old.  He left behind four kids and was running a sneaker store when he was deported to Jamaica.  He had been convicted of two possession of marijuana misdemeanors.

In my view, since their deportations were based on misguided interpretations of law, the right to new hearings seems to logically flow from the Court's reasoning in Carachuri-Rosendo.

Otherwise, the Court's bark far exceeds its bite.   

Reopening Misguided Deportations As A Principle Of Fairness

Family unity has long been a fundamental tenet of immigration law.  Conversely, the effect of family separation is a major issue of deportation defense.

It is unknown how many lawful permanent residents (LPRs) were sent back to their home country as a result of the mistaken aggravated felony rules.    However, a recent University of California study estimates the magnitude of family separation on LPR families caused by deportations for minor crimes during the period of 1997 to 2007: 

• 87,884 LPRs were deported during the ten year period
• 68% of these LPRs were deported for minor non-violent crimes
• The deported LPRs had lived in the U.S. an average of ten years
• The deported LPRs had a total of 103,000 children
• 88,000 children of deported LPRs were U.S. citizens
• 44,000 children of deported LPRs were under 5 years old

In addition, there were 217,000 other family members (including U.S. spouses, parents, brothers and sisters) affected by the deportation of LPRs.   

"American principles of justice," noted the legal rights groups In their joint letter to Attorney General Eric Holder and DHS Secretary Janet Napolitano (PDF), "require that these immigrants now receive their day in court."

They're right.

After more than a decade of flawed deportations, due process demands nothing less.

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Despite a 44 year history, the Cuban Adjustment Act (CAA) remains a mystery to many in Southern California.

Government lawyers are among those sometimes confused by CAA's simplicity.

A Defense To Deportation And Removal

Three weeks after arriving in Mexico City, Norma finally reached Tijuana, Mexico.  The next day she went to the San Diego port of entry.  She noted her fear about returning to Cuba.  The officer granted parole, allowing her lawful entry into the U.S. and releasing her from custody.

At Norma's deportation and removal defense hearing, government counsel objected to Norma's request to adjust her status to permanent residency. 

"Your honor, the only potential avenue of relief is her weak claim of asylum," insisted the DHS attorney not once, not twice, but three times.

Grasping the judge's growing frustration, I asked the court for a two-week continuance to allow opposing counsel to study the issue.

What Is The Cuban Adjustment Act?

The Cuban Adjustment Act was enacted on November 2, 1966.  Like many immigration laws, it was politically inspired.  It resulted out of massive Cuban migration to the U.S. after the 1959 Cuban Revolution and failed attempts to overthrown the Castro regime.

A large part of CAA's uniqueness lies in its "one year and one day" rule.

Cuban citizens can apply for permanent resident status if they have been present in the U.S. for at least one year after admission or parole.  They do not need to be beneficiaries of family-sponsored or employment-sponsored immigrant visa petitions.

The 1995 Wet Foot/Dry Foot Policy

Under the Clinton Administration, the Cuban Adjustment Act was revised in 1995. The changes became known as the wet foot/dry foot policy.

Under the 1995 provisions, the U.S. Coast Guard is required to repatriate Cubans intercepted at sea, those with "wet feet," back to Cuba - unless they prove a fear of persecution if they are sent back, in which case they are resettled in a third country.

Cubans who make it to U.S. shores, those with "dry feet," are permitted to stay here and adjust status the following year.

The Dusty Foot Trail To Southern California

The 1995 amendments led to unanticipated consequences.

Fearing apprehension at sea, Cubans changed their route to the U.S.  Entering via Miami became a less preferred option.

Over the past decade, like Norma, Cubans have opted for traveling first to Mexico, and then entering the United States at a Mexico-U.S. port.  

• Between 2004 and 2005, Coast Guard efforts were intensified. The interdictions of Cubans more than doubled from 1,225 to 2,712.  In 2007 the high of 2,868 was reached.  
• As a result, the number of Cubans arriving through Florida began to decrease, dropping below 1,000 per year by 2006.
• Meanwhile, the amount crossing the Mexican border rose from almost 6,000 in 2004 to approximately 11,000 in 2007 and 10,000 in 2008.  

The trend, dubbed "dusty foot," continues today.

The Difficulty With CAA Is That It's Not Difficult

Having practiced as a San Diego immigration attorney for more than 15 years, I feel the migration patterns of Cuban immigrants should have led to a better understanding of the Cuban Adjustment Act by now.    

Even though the number of Cubans entering the U.S. at California and other southwestern states dropped to 5,600 in 2009, this figure is large enough to justify increased training of government attorneys. 

Most immigration programs have complex requirements.  Not CAA.  

The Cuban Adjustment Act is not a difficult program to understand. 

Ironically, that's the difficulty.   

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Over the past decade, immigration hearings have often resembled kangaroo court proceedings.  Worse, when challenges are filed at the Board of Immigration Appeals, the nation's highest administrative body for interpreting and applying immigration law, it is not uncommon for the BIA to adopt the role of a rubber stamp.  

Not surprisingly, public confidence in the immigration court process has eroded.

A Day At The Immigration Court

A few days ago, as I sat in the immigration court lobby, a distressed colleague stopped to ask me a question.  He had just received an unfavorable ruling.  An immigration judge ordered his client to be removed from the United States.  The judge held his client's testimony was not specific enough about his family's relocation plan if he was deported.

About 15 minutes later, another fellow bar member stormed out of a different courtroom across the hall.  She, too, was upset because her client had lost his case.  The judge held against her client because his testimony was too specific about his family's relocation plans.

Given the current system of immigration appeals, I'm not sure their chances of winning on appeal are any better.

The ABA Report On Immigration Appeals

Recently, a report commissioned by the American Bar Association, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (PDF), outlined concerns about the immigration appellate system.

According to the report, many of the current problems can be traced to "streamlining" procedures implemented between 1999 and 2002.  The changes were designed to address backlogs and delays - which presumably encouraged abuse of the immigration appellate system and caused hardships for immigrants with meritorious claims.  

The changes have not worked out as intended.

In 1999 the first streamlining reforms took place, allowing a single Board member to affirm a decision of an immigration judge without opinion ("AWOs") in a limited category of cases.  Before this change, all decisions required three Board members.

In 2002 streamlining took a huge leap forward.  These changes, noted the ABA:

• Expanded the category of cases in which AWOs and single-member review were appropriate.  Within the next year AWOs accounted for 36% of Board decisions.  Although this figure has decreased, short opinions remain the dominant form of BIA decision-making.  Now, the Board's decision are often only two to three sentences, even when the issues appear to merit longer analysis.
• Eliminated the BIA's authority to conduct de novo fact finding, limiting review of fact and credibility determination to a "clearly erroneous" standard.  This inhibits the Board's ability to correct mistakes by immigration judges and to check against unwarranted disparities among judges in factually similar cases.
• Imposed time limits for rendering decisions, requiring single-member opinions to be issued within 90 days and panel decisions within 180 days.  These time limits place an unreasonable burden on immigrants and their attorneys in many cases, as well as serve as an irrational incentive for truncated BIA opinions. 
• Reduced the size of the BIA from 23 to 11 members.  Even though the size of the Board had been increased back to 16 members, insufficient resources are still a major hurdle to adequately handling the 30,00 new appeals filed annually.

According to the ABA, the combination of these factors have caused a dearth of Board precedent and guidance for immigration courts, appellants, and immigration appeals lawyers.  To be designated as precedent, decisions must be issued by a three-member panel or the Board en banc.  As a result, the vast majority of Board decisions are now unpublished and, although binding on the parties, do not serve as precedent.

Immigration Appeals: Missing Authority, Absent Leadership

There are no cases, to the best of my knowledge, on point to guide my colleagues on what constitutes sufficient, but not too much, testimony about an immigrant's relocation plans if he or she is forced to leave our country.

On appeal, my fellow bar members will need to pioneer their own paths.

Holding their breath is not advised.  As I wrote in Sleeping Justice: The Board of Immigration Appeals' Failure to Lead, I have been waiting over 7 1/2 years for the BIA to clarify hardship factors in cancellation of removal cases.  

Either standard used to deny my fellow bar members' cases, in the absence of judicial clarity, is near tantamount to an unconscionable standard.

Like Congressman Gary Ackerman, "I'm in favor of immigration but we also need rules."

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For over a decade, deportation defense and immigration appeals attorneys have criticized the impact of minor criminal offenses on lawful permanent resident (LPR) immigrants and their families.  We've been lone wolves.

But last week, in Carachuri-Rosendo v. Holder, the Supreme Court provided hope the issue will finally receive constitutional scrutiny.

Now, a recently released study, "In The Child's Best Interests? The Consequences Of Losing a Lawful Immigrant Parent", adds numerical insight about the need for judicial reform of our deportation laws.

The study covers LPR parental deportation between 1997 and 2007.  The findings include:

Lawful Permanent Residents

• 87,884 LPRs were deported during the ten year period
• 68% of these LPRs were deported for minor, non-violent crimes
• The deported LPRs had lived in the U.S. an average of ten years, long enough to form families

Children of Lawful Permanent Residents

• 53% of the deported LPRs had at least one child living with them
• Deported LPRs had a total of 103,000 children
• 88,000 children of deported LPRs were U.S. citizens
• 44,000 children of deported LPRs were under the age of 5

Family Members of Lawful Permanent Residents

In addition, the study noted 217,000 other immediate family members (including U.S. husbands, wives, brothers, and sisters) were affected by the deportation of LPRs between 1997-2007.

Two Needed Reforms

As I discussed in "Immigration Fairness: The Need to Restore Judicial Discretion in Deportation Cases", there are two components to repair in these types of deportation cases.

First, differentiate minor and major convictions.  Several offenses deemed minor under state law are transformed into aggravated felonies under immigration law.  Once a conviction is classified as an aggravated felony, a lawful permanent resident is subject to automatic removal from the United States.

Second, restore judicial discretion.  Immigration judges lack the discretion to distinguish minor from major crimes.  Until this ability is restored, they lack the authority to intervene and exercise reason in separating which immigrants deserve a second chance at remaining lawfully here.

While the battle for reform is far from over, it's nice to know these issues have finally reached the attention of a broader audience.

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For over 10 years, judicial discretion has been absent from the review of many minor criminal convictions in the deportation context.

Offenses considered small under state law are often deemed aggravated felonies under immigration law.  Aggravated felonies lead to the near automatic loss of an immigrant's lawful permanent resident status.

Today, the Supreme Court took an extended look at the issue.

In the first case, Padilla v. Kentucky, the Court blocked the deportation of a Vietnam veteran from Kentucky.  He had pled guilty to trafficking marijuana.  His lawyer had told him erroneously he did not have to worry about his immigration status because he had lived legally in the U.S. for 40 years.

In his opinion, Justice Stevens noted, "The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes."  For this reason, lawyers must inform immigrants about the risk of deportation before entering a guilty plea.

In a second case, Carachuri-Rosendo v. Holder, the Court did not reach a decision.  They took under consideration whether a Texas man could be deported for possessing one tablet of Xanax, an  anti-anxiety drug, after he had pled guilty to having less than two ounces of marijuana the year before.  Both convictions were misdemeanors.

Nicole Saharsky, on behalf of the Solicitor General, defended the strict legal standards.  She stressed Congress had taken a hard line on criminal aliens, especially recidivists.  Since a second drug crime is punishable as a felony in some states, she stated, it qualifies as an aggravated felony.

Writing in the Huffington Post, H. Lee Sarokin, who sat on the federal bench for 17 years, asked "When Does Deportation Become Cruel and Unusual Punishment?"

He wrote:

"Many of these persons facing deportation have lived in this country for years, for many -- virtually their entire lives.  They have wives and children and parents here.  They have substantial ties to the community.  Deportation for them is often more severe than any prison term.  We must distinguish between the criminal and the minor offender in the same way that we do for our citizens.  Leaving one's family, friends and home is too great a punishment to impose so cavalierly.  We need some greater sense and sensibility when it comes to deportation."

Having practiced as a deportation defense attorney in San Diego and Riverside during the demise of judicial discretion, I agree with Judge Sarokin. 

A line of rationality must be drawn between serious and minor crimes.  Immigration judges should be allowed to intervene on behalf of deserving immigrants. 

Hopefully, today represents a new watershed for immigration law.  The day fairness made a comeback in deportation proceedings.

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Twelve and a half years ago, immigration law underwent a major shift. A broad piece of federal legislation, IIRAIRA, went into effect. 

By now the dust should have settled. 

However, due to the lack of guidance  by the nation's top immigration court, many immigrants and their attorneys are still wondering what some of the changes mean. 

IIRAIRA curtailed several avenues of relief available to immigrants, including those placed in immigration court proceedings. A new system, based on removal, replaced the system of deportation. 

Before the shift, undocumented immigrants could request suspension of deportation from an immigration judge. After the change, they were allowed to seek cancellation of removal. Both relief forms depend on the concept of hardship. 

The difference between the two hardship formulations is qualitative.

• Under suspension of deportation, immigrants were required to prove their deportation would result in extreme hardship to themselves or to their qualifying relatives (parents, spouses, or children who are U.S. citizens or permanent residents).
• Cancellation of removal compels immigrants to demonstrate their removal will cause exceptional and extremely unusual hardship - but only to their qualifying relatives. 

Understanding the parameters of this qualitative shift is critical for immigration trial lawyers and their clients. The Board of Immigration Appeals, as the nation’s highest administrative body for interpreting and applying immigration law, is responsible for providing this guidance. 

Immigrants seeking suspension of deportation were beneficiaries of a sizable body of case law, dating back over 35 years and covering a variety of family situations. In Matter of Anderson (PDF), the Board set forth a vast list of factors for judges to consider when determining whether hardship existed in a particular case. 

In sharp contrast, the BIA has only issued three opinions pertaining to hardship in the cancellation of removal context . . . and its most recent decision, Matter of Recinas (PDF), was published on September 19, 2002 – a period of 7 years ago.

All three opinions have centered on a narrow family situation involving U.S. children being raised by a single parent.  As an immigration trial and appeals attorney for deportation defense cases, I can testify this is not the only  set of circumstances presented to immigration judges in hardship cases.

I also know  the Board's silence cannot be attributed to lack of opportunity.  Immigration judges handle about 300,000 - 350,000 cases per year; appeals are filed in about 10% of these cases.

To say the least, the BIA's failure to provide a list of new hardship factors, even remotely akin to Anderson, is a failure of leadership.

The net effect is two-fold.

Immigration attorneys and their clients operate in a legal limbo. They seek relief without judicial guidelines regarding what evidence should be presented.

Immigration judges, too, are placed in an untenable situation, lacking benchmarks to determine whether an immigrant merits being allowed to remain in the United States.

Having slumbered, for well past a decade, it’s time for the BIA to get to work. 

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Careless judicial interpretation often leads to unjustified consequences.

For immigrants, it can mean deportation.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (PDF) transformed immigration law.  One change affected the relief available to undocumented immigrants when the government seeks their removal from the United States.

Before the revision, immigrants could ask for suspension of deportation.  This required them to prove extreme hardship.  After the change, they could seek cancellation of removal, which demands a showing of exceptional and extremely unusual hardship. If immigrants fail to meet the relevant standard, they are sent back to their country of origin.

The Board of Immigration Appeals issued its understanding of the differences between the two hardship standards in Matter of Monreal.  First, the Board explained that "under the plain meaning of the words of the two hardship statutes the standard for cancellation of removal was higher than the standard for suspension of deportation."  Second, the Board noted that even though the hardship standard under cancellation of removal was heightened, it was clearly set at a level less than "unconscionable."

In my view as an immigration deportation and removal defense lawyer, the BIA was wrong on the first point.  And the Board's mistake on the first part of their analysis negated their second point.

The plain meaning of the words of the two statutes does not mandate a more restrictive evaluation of hardship.  Indeed, the only hardship more severe than an extreme hardship is an unconscionable hardship. 

The Board's careless interpretation overlooked a lesson I was taught in elementary school: the difference between adjectives and adverbs.

To understand hardship in the immigration context, four adjectives are important: exceptional, unusual, extreme, and unconscionable. According to well-respected dictionaries like Webster's, Oxford, and Cambridge, a comparative list of commonly accepted meanings follow:

• Exceptional – unusual, extraordinary, irregular, peculiar, rare, strange, unnatural, anomalous, abnormal
• Unusual – uncommon, extraordinary, exceptional, rare, strange, remarkable, singular, curious, queer, odd
• Extreme – utmost, greatest, rarest, highest, outermost, endmost, uttermost, farthest, furthest, remotest, ultimate
• Unconscionable – immoral, barbarous, preposterous, uncivilized, unethical, unjust, wicked conscienceless, unscrupulous

Based on this review, a spectrum of hardship emerges.

Three significant points can be gleaned from this spectrum:

1. The terms "exceptional" and "unusual" are equivalent. Both adjectives connote a situation which is extraordinary or rare. Both describe the same degree of severity.  As synonyms, their meanings overlap each other 100%.
2. The terms "exceptional" and "unusual" apply to a hardship which is less harsh than an "extreme" hardship. The terms "exceptional" and "unusual" address a hardship which is extraordinary or rare. "Extreme" pertains to a situation which is the ultimate, rarest, or remotest.
3. The circumstances described by the term "extremely unusual" are less severe than those described by the term "extreme." An extremely unusual hardship is more severe than an unusual hardship. But it is less severe than an extreme hardship. In the phrase "extremely unusual," the word extremely is an adverb. The adjective is still unusual. By definition, there is a qualitative difference between unusual hardship (even if "extremely unusual") and extreme hardship (even if "ordinarily extreme").

Based on the words used by Congress, the BIA flunked an elementary school grammar test.

The effect of their error is not simply grammatical.  The BIA's blunder created a false barrier to relief from deportation which many worthy immigrants cannot surmount.

Immigration judges, following the BIA's mistaken precedent, order the removal of immigrants who can show extreme hardship - because extreme hardship is not deemed severe enough under the new standard. 

Due to the BIA's careless interpretation, what immigration judges want is unconscionable.

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