Happy New Year! As the legislative session begins for the beginning of 2014, there has already been a great deal of discussion about Comprehensive Immigration Reform ("CIR") and the possibility that it may be passed this year. CIR is meant to resolve the maze in which current immigration law appears to leave the country, but obtaining the passage of CIR is a maze in itself. Although Republican John Boehner, the U.S. Congress's Speaker of the House of Representatives, has made clear his intention of moving forward with attempting to have CIR passed, whether CIR becomes a reality depends largely on internal Republican politics, as summarized below by Atlantic Media's Ronald Brownstein on NBC Los Angeles's News Conference.
As can be seen above, there is still a great deal of uncertainty as to
whether CIR will actually move forward. Therefore, foreign nationals seeking
resolution of their immigration matters continue to be limited to what
current law allows. On New Year's Eve, the U.S. Court of Appeals for
Ninth Circuit ("Ninth Circuit"), the federal appeals court that
hears petitions for review of decisions by the Board of Immigration Appeals
("BIA") regarding immigration-court proceedings within certain
Western states including California, Nevada, Arizona, and Washington, held in
Li v. Holder that a single material and conscious falsehood in one part of an asylum
applicant's testimony
makes uncredible all of that applicant's testimony, thereby warranting an adverse-credibility finding that effectively renders
an asylum application unapprovable.
The case concerns a Chinese-national woman who is of both Chinese and
Korean descent and who sought but was denied asylum in the United States
by both an Immigration Judge and later the BIA because of
allegedly inconsistent testimonyregarding only two parts of her overall asylum application, i.e., when
she applied for and received her Chinese passport and for how long she
participated in a Christian church, her following of which she claimed
led in part to her being persecuted in China. Despite both the woman's and a
dissenting judge's arguments to the contrary, the Ninth Circuit said
the BIA was not wrong in using an adverse-credibility finding on one claim to support an adverse-credibility
finding on another claim.
On the bright side, the same Ninth Circuit held a week earlier in
Euceda Hernandez v. Holder that the BIA cannot reject on jurisdictional grounds a motion to reopen
(or to reconsider) submitted to the BIA when such motion should have been
filed with the relevant immigration court. A jurisdictional ground for
dismissing a filing is based on a conclusion that the U.S. Congress
did not give the authority to the rejecting body, in this case the BIA, to consider such filing.
As with most if not all adjudicating bodies, the BIA has the authority
to determine based on the laws passed by the U.S. Congress of the parameters
of its jurisdiction, but the federal courts have the authority to decidewhether such determination is correct.
In overturning the BIA's determination, the Ninth Circuit found that
the BIA's erroneous rejection of a Honduran-national man's motion
was based on the BIA's place-of-filing rule, which is only aclaims-processing limitation as opposed to a legitimate jurisdictional limitation, meaning
that the BIA could consider the merits of such a motion if it wished to
do so rather than simply rejecting such motion under the guise that it
is without authority from the U.S. Congress to give the motion any consideration.
The decision is unsurprising given the confusion in which current immigration
law leaves many people regarding several issues including something that
should be so simple as where to file a motion. As a result, the immigration-law
maze continues into the New Year at least until, as Ronald Brownstein
discusses in the above video, the Republicans can resolve their own internal
maze in favor of passing CIR.