Many people in the U.S. are tired of the debate on Comprehensive Immigration Reform ("CIR") and simply want to have some finality on whether or not it is going to pass. Unfortunately, such a determination despite the efforts by some including Dan Pfeiffer, Assistant to the President, appears to be far from becoming final, and instead more discretion in how the law is enforced, rather than a change in the law itself, appears to be the proposed interim solution.
Nevertheless, in spite of the continued refusal of the U.S. Congress, particularly
the U.S. House of Representatives, to have a final vote on CIR, the U.S.
Court of Appeals for the Ninth Circuit, the federal appeals court that
hears petitions for review from decisions by the Board of Immigration
Appeals ("BIA") regarding removal proceedings conducted within
the Western States, issued four decisions that may be best summarized
as cutting to the heart of the matter.
Three of the four published decisions pertained to whether a person's
conviction rendered him/her removable or otherwise ineligible for relief
from removal. For instance, in
Coronado v. Holder, the court first determined that a Mexican man's state conviction
for possession of methamphetamine was
not categorically a controlled-substances offense as defined by the Immigration and Nationality
Act ("INA"), meaning there was at least some activity for which
one could be convicted under the state criminal law that would nevertheless
not affect the convicted person's immigration status. Next, the court
determined that because the state law was divisible, i.e., it references
different drugs in the alternative rather than in the aggregate to establish
its basis, the
modified categorical approach could be pursued, meaning that the actual details of the alleged offense
could be reviewed. After conducting the modified-categorical analysis,
the court concluded the man
had been convicted of a controlled-substances offense as defined by the INA.
Similarly, in
Turijan v. Holder, the court ruled that a Mexican man's state conviction for false imprisonment,
which was specifically charged as a felony effected by violence, menace,
fraud, or deceit, was
not categorically a crime involving moral turpitude ("CIMT"). However, in a footnote,
the court noted that because the record did not contain any further details
regarding the conviction, the modified-categoral
could not be used to determine whether the conviction amounted to a CIMT.
Moreover, in
Perez-Palafox v. Holder, the court ruled that the BIA
did not engage in impermissible factfinding that led to the conclusion that a Mexican man's state conviction for
transportation of methamphetamine constituted a particularly serious crime
that rendered him ineligible to maintain his prior grant of withholding
of removal.
The Ninth Circuit also discussed this past week the issue of credibility. In
Huang v. Holder, the court sided with the relevant immigration judge's conclusion
that a Chinese woman's
demeanor while testifying, in part, conveyed that she was not being in honest regarding her asylum
application.
All four cases show a concerted effort by the Ninth Circuit to clarify
as much as possible what is permissible and what is not permissible during
removal proceedings, something that CIR should accomplish if passed, but
there still continues to be anything but clarity regarding whether such
passage will occur.