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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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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In the view of immigration restrictionists, a simple legal reform would reduce illegal immigration.

All that is required, writes George Will in the Washington Post, is to correct the misinterpretation of the 14th Amendment's first sentence:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

Children of illegal immigrants were not part of the 14th Amendment's coverage, argues Will, since there were no laws in 1868 restricting immigration.

The Suggested Reform Is Not Simple

John Eastman, Dean at the Chapman University School of Law, supports Will's position.  He outlines three possible paths for changing the 14th Amendment.

The first path is via constitutional amendment.  In Eastman's view this path is redundant and not necessary.  Second, he suggests Congress could simply pass a statute re-defining the automatic citizenship requirement.  Third, he asserts if a City does not recognize the citizenship of children born to undocumented immigrants, this would force an expedited legal showdown.

Eastman concedes, whichever approach is taken, the federal courts and ultimately the Supreme Court will have to weigh in on the issue. 

Other constitutional scholars believe the position advanced by Will is dead wrong.

According to Elizabeth Wydra, Chief Counsel at the Constitutional Accountability Center, the Citizenship Clause was proposed, enacted, and ratified with the understanding that it provided automatic birthright citizenship to children born in the United States to alien parents.

"Providing for birthright citizenship regardless of race, color, or previous condition of servitude righted the horrible wrong of Dred Scott v. Sandford," stresses Wydra, "and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship."

Provoking a new civil war centering on the 14th Amendment doesn't seem like a simple reform to me.

Bad Politics, Bad Law, or Both?

When it comes to Immigration law, immigration politics is too often the tail wagging the dog.

The discussion over the 14th Amendment is no different.   Utilizing imagery of illegal immigrants capsizing the American ship, restrictionists seek to impose their political agenda on our nation's immigration laws.

Although Will relies on the work of Lino Gragli, a law professor at the University of Texas, it's hard to overlook the political basis of Gragli's position:

"A parent from a poor country . . .  can hardly do more for a child then make him or her an American citizen, entitled to all the advantages of the American welfare state."

On the one hand, few would argue the United States is not a special place to live.  On the other, in my 17 years as an immigration lawyer in Southern California, I've never met anyone who came here to obtain citizenship for an unborn child.  In all likelihood, this reason may motivate some immigrants - but the true figures are far less than the political rhetoric suggests.

The reality is love just happens, usually unexpectedly.  Having a child born in the United States is normally a byproduct of living here, not vice versa.    

Immigrants enter the U.S. for a host of reasons.  To name a few, persecution, economic opportunity, religious freedom, as well as poverty.          

If fixing our broken immigration system is the objective, eliminating birthright citizenship is not the answer.  The net effect would increase, not decrease, immigration problems.  A new underclass of children born here but not entitled to live here or anywhere else would be created. 

Political aims tend to be short-sighted.  Our legal system needs more durable standards.

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Last week, a New America Media report disclosed 100 House members have asked President Obama to jump start the immigration reform debate.

When the issue returns, I hope Congress remembers the kids.

Immigrant children are innocent victims of our inability to shape a compromise on immigration.

Worse, their plight has been minimized by anti-immigrant forces.

They never met Henry.

The Nightmare of Graduation Day 

Henry and his parents visited my office about two months before his high school graduation.  They sought direction about his future.

On paper, Henry was the All American kid.  In person, he was polite, well-mannered, and soft-spoken.

Henry was an 'A' student.  He had won many scholastic and good behavior awards.  He took first place in a district-wide science project competition.  Henry was also ASB vice-president and an ROTC member.  He was the ace pitcher on his school's baseball team.

Henry's immediate goals were simple.  "I'd like to join the army," he told me, "so I can help protect my country which has given me so much."

As complete as Henry's resume looked, it lacked one major item - legal documents to live in the United States.

He was brought here at the age of 5 when his parents entered the country without permission.  Working at minimum wage, his parents supported Henry in a stable home.  They raised Henry to believe good behavior and hard work would open doors of opportunity.

Instead, with graduation nearing, Henry had nowhere to turn.

His dream of joining the U.S. army was not possible.  He could not legally work or go to college.

At the end of our meeting, the hopelessness of Henry and his parents was apparent.  As they left my office, light tears rolled down Henry's cheeks.

Henry deserves better.

A Light at the End of the Tunnel?

Whenever immigration reform discussions begin, Congress is expected to argue over the merits of the DREAM Act.  This proposal would allow young Henry and other immigrants students the possibility of lawful resident status.

Opponents will assert the legislation is a form of blanket amnesty.  They're wrong. 

As an immigration lawyer who helps immigrants earn permanent residence and U.S. citizenship, I know there are no shortcuts provided by the DREAM Act. 

Under the most current version, lawful permanent resident status is only granted if immigrant children meet certain requirements over an 11 year period.

In addition, during a six-year period of "conditional resident status," they must (a) demonstrate a record of good moral character and (b) successfully complete at least two years of service in the armed forces or attendance at a college.

For innocent and deserving immigrant children like Henry, I hope Congress sees fit this round to provide them with light at the end of the tunnel.

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My son was beaten and stabbed a few nights ago.

By a group of young immigrants.

I've spent my career defending immigrants. My commitment faces constant criticism. 

Far too often, news stories tell about immigrants who perform bad acts.  Even friends and colleagues question my values when such events are reported.

I understand their concerns.  But I've seen the positive aspects of immigration in my own life.  From my perspective, the good which flows from immigrant contributions outweighs the bad.

My dad was an immigrant.  My mother had roots in two different countries.  My parents were laborers with little education.  My father spent the early part of his life here as a farm worker, the latter as a dishwasher and kitchen helper for a Chinese restaurant.  My mother worked in factories until her bad back forced her to move into housecleaning.  They made positive contributions to American society.  They were unsung American heroes.

Like many immigrants, they brought a solid moral foundation with them. 

I was raised to use good manners, to be polite and courteous, and to respect my elders.  I was taught to do my best at all times.  I was encouraged to study hard, to work hard, and to help others.  I was taught to obey the law - and not to harm others.

The incident a few nights ago shook the foundations of my world.  My personal views on deportation defense were again called into question.  This time I am the examiner.

The ugly realities about immigration and our society, which, for me, were way out there - are staring back at me.  And they've never been closer.

I'm shocked, hurt, angry, and saddened - all at once.

I suspect some of the youths who stabbed my son feel left out of the American mosaic.  It doesn't excuse their actions.

These types of misguided actions, whether committed by citizens or immigrants, destroy the fabric of society. 

For many immigrants, striving in all the right ways to be accepted into the American community, the negative effects are magnified.

Those who harmed my son did nothing to change the good that my parents accomplished.  But they undermine the efforts of new immigrants who, like my parents, simply want to earn an honest day's wage for an honest day's work. 

One consequence of such heinous behavior is the call for stricter immigration laws.  There are no exemptions.  Worthy immigrants who would benefit from positive reform are forced to continue hiding in the shadows of American communities.

In stabbing my son, these immigrant thugs stabbed all immigrants.

Thank God, I still have my son.

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After waiting 2 1/2 hours, my client was finally called for her green card interview.

We headed to the hallway door to meet the U.S. Citizenship and Immigration Services officer.  I extended my right hand to greet the officer and introduce myself.  He turned and walked away.  With his back to us, he said, "Follow me."

My client's face turned colorless.  Fear ran up and down her spine.  I whispered, "Don't worry.  It's okay."

I again extended my right hand as we entered the officer's room.  He looked at me and said,"We do not shake hands with immigrants seeking benefits."

"Really," I asked, "is that a written policy?"

He ignored the question.

Maybe I'm too old-fashioned.  As I was growing up, my mother taught me to always shake hands.

President Obama has indicated he wants to implement changes to government bureaucracy.  I suggest starting with improved customer relations training for immigration office employees.

A Culture of Rudeness

The attitude displayed by the USCIS officer is not an isolated incident.  In my experience, too many immigration offices are infected with a culture of rudeness.  Not all, but too many.

• Filing window clerks who fling papers at clients and attorneys rather than respond to simple inquiries about procedures or forms
• Security guards who treat visitors as if they are enemy terrorist suspects
• Detention officers who place callers on hold for 20 minutes before asking the callers about their names or reasons for calling
• Immigration judges who act like having tantrums on the bench is a form of judicial discretion

Government lawyers are not exempt from this epidemic. 

Having been an immigration trial attorney in Riverside and San Diego for over 16 years, as I've walked into immigration court, I offer to shake hands with opposing counsel.  Most return my gesture.  Yet, some appear shocked. They stare incredulously at me .  .  .  as if I am doing something foreign to legal etiquette. 

And unfortunately, this handshake is sometimes the end of civility.  More often than I care to remember, I've needed to remind opposing counsel it is not necessary to personalize our legal dispute or vilify my immigration client.

A Lesson From Basketball

Like President Obama, I played a lot of basketball as a young man. 

I remember many intense games at a church playground with a dangling chain-link basket.  We would try our hardest to beat each other.  Afterward, we would head to a small neighborhood grocery store.  We would put our money together to buy and share twinkies and chocolate milk.  Despite the furious competition just minutes earlier, there was rarely lingering animosity.

I learned an invaluable lesson from those basketball games -- a lesson it appears our president has also learned.

Mere opposition does not justify belligerence.

This lesson guides my interaction with those on the other side when I represent clients.

Even though my clients are immigrants from foreign countries, the rude, and often mean-spirited, attitude displayed at many immigration offices is inappropriate.  Government employees are public servants, and role models for the public they serve.  

I am not alone in my position.  As the Institute for Civility in Government notes, if government will not model civic responsibility, how can we expect others in society to be any different? 

Just ask Kayne West, Serena Williams, or Joe Wilson.

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