As we usher in a New Year, and I wish a happy one to all of you, we look
to see whether more will be done on Comprehensive Immigration Reform ("CIR")
while also worry whether President Barack Obama's announcement on
November 20, 2014 will be reversed by a Republican-party-controlled U.S. Congress.
I would assume nothing more and nothing less than
that announcement
will remain the status quo this year, so again it is simply best to turn
toward what has been issued by the federal courts, particularly the decisions
from November 2014, the same month the President made his announcement,
of the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"),
the federal appeals court that hears appeals from decisions by U.S. District
Courts within the Western States as well as hears petitions for review
from decisions by the Board of Immigration Appeals ("BIA") regarding
removal proceedings conducted within the Western States.
In
Almanza-Arenas v. Holder, the Ninth Circuit held in spectacular fashion not only that a Mexican
man's California conviction for vehicle theft
cannot be deemed
to be for a Crime Involving Moral Turpitude ("CIMT") because
under the Immigration Laws it is overly broad and regardless of whether
the taking of the vehicle was intended to be permanent or temporary but
also that a foreign national
remains eligible
for relief from removal if the record of conviction is unclear as to whether
such taking was indeed intended to be permanent or temporary, in contrast
to a prior decision by the Ninth Circuit, and because of an intervening
decision by the U.S. Supreme Court.
A few days later in
Tarlock Singh v. Holder, the Ninth Circuit
denounced the BIA
for refusing to consider reopening, despite having received a timely motion,
an Indian man's exclusion proceedings so that he could apply for adjustment
of status before U.S. Citizenship and Immigration Services ("USCIS").
Similarly, in
Vargas Cervantes v. Holder, the Ninth Circuit
reversed the BIA
by determining that it had improperly looked beyond the record of conviction
when it concluded that a Mexican man's conviction for domestic violence
was against his wife, thereby rendering unclear as to whether that conviction
was indeed for a CIMT.
In
Lai v. Holder, the Ninth Circuit
amended
its
prior decision
by determining that even a foreign national who is deemed not to be a
credible, as opposed to one deemed credible, by an immigration judge must
still be given notice of an opportunity to corroborate his/her asylum-related
claim(s). Similarly, in
Owino v. Holder, the Ninth Circuit lambasted both the BIA and the U.S. Department of Homeland
Security ("DHS") for
refusing to provide a continuance
to a Kenyan man so that he could submit arrest-related documents in support
of his asylum-related claim(s) and for submitting for authentication purposes
those arrest-related documents
to the very same authorities
from whom the Kenyan man claimed to fear persecution, respectively.
Not all of the Ninth Circuit's immigration-related decisions from
November 2014 pertained simply to determinations by the BIA because one
such decision,
U.S. v. Raya-Vaca,
reversed
a determination by a U.S. District Court not to dismiss against a Mexican
man an illegal-reentry federal criminal charge because his due-process
rights were violated during his prior expedited removal wherein he was
not given by the inspecting DHS officer both notice of the expedited-removal-related
charge(s) against him and an opportunity to respond.
Also, not all of the November 2014 immigration-related Ninth-Circuit decisions
were positive for foreign nationals. For instance, in
Ibarra-Hernandez v. Holder, the Ninth Circuit
sustained
a BIA determination that a Mexican woman's Arizona conviction for
identity theft was for a CIMT because although the underlying criminal-code
statute does not require fraud the actual circumstances of the Mexican
woman's conviction as shown in the record of conviction did involve
such fraud. Finally, the Ninth Circuit in
Leal v. Holder
agreed
that a Mexican man's Arizona conviction for felony endangerment was
indeed for a CIMT that barred him from the type of relief he was seeking
.
Whether DHS will follow these various interpretations when evaluating
applications brought under the President's announcement is unlikely
because of how confusing their application is. Such confusion is all the
more reason for the U.S. Congress to address the issue itself, but in
the absence of such U.S. Congressional action, millions of foreign nationals
unlawfully present in the U.S. will have to settle for less.
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