Retired Supreme Court Justice O’Connor weighed in on the recent Senate bill passed in her home state of Arizona.  While acknowledging that Arizona does have a legitimate concern with immigrants illegally crossing the border from Mexico, she still finds that the Bill goes to far.  The bill, on its face, allows state police officers to question a person’s residency status, and if information is not adequately provided the person can be imprisoned and even deported.  While many argue that this law only does what federal law already allows federal agents to do, O’Conner looked beyond the face of the law when expressing concern that it would allow officers to target people who look Hispanic, thus legalizing racial profiling.  She has no doubt that the law will be the subject of extensive litigation over application and the constitutionality of the law.

The ABA issued a report, conducted by Arnold & Porter LLC, outlining what it found to be the most pressing issues with the current immigration judicial system and making several recommendations for system restructuring to held ease the burdens.

The report states immigration courts have more than 280,000 proceedings a year.  This amounts to over 1,000 heard by each immigration judge a year.  The BIA decided more than 30,000 appeals a year, and of these more than 10,000 were filed for appeal to the federal circuit courts.  This amounts to about 17% of the total cases handled by the federal circuit courts.  This has amounted to the court systems being overwhelmed with backlogged immigration cases, and thus, effectively robbing many aliens of any chance of a fair hearing; this is especially alarming given the high stakes in removability proceedings, as in many times the alien is being faced with being sent back to a place they had hoped to leave behind.  The report also states that there is great disparity between the immigration judges, determining that success is more often based on the judge that oversees the case than the actual merits of the case.

Thus, the report calls for an overhaul of the system, and proposes three restructuring themes that would ease the burden on the immigration judicial system and create more uniformity in the system.  The Report also suggests that certain provision of the INA should be reformed, allowing certain undocumented noncitizens to more easily become lawful permanent residents through the adjustment of status process.  It also recommends a narrowing of the definitions of aggravated felony and crimes involving moral turpitude to allow more fair application for noncitizens who have had longstanding ties to the United States.

For more information, please see the extensive and insightful report, located here.

A Jamaican man was convicted of conspiracy to commit a robbery, and on this basis was found to be removable as an aggravated felon.  Respondent filed a motion to terminate, but this was denied by the Immigration Judge, so he appealed, asserting that his conspiracy conviction did not require a finding of commission of an overt act, and thus is not an aggravated felony under 101(a)(43).

The BIA agreed with the Respondent, finding that the Immigration Judge went too far in considering evidence that showed that the conspirators actually did carry out the alleged robbery, saying that only the offense that is actually charged can be considered.  Thus, a conviction for conspiracy to commit a theft cannot be considered a theft offense under 101(a)(43)(G), even if there is evidence that the theft was completed.  On the issue of the conspiracy conviction, for the purposes of 101(a)(43)(U), the court held that the conspiracy does not require the commission of an overt act.  This conclusion was based on the Supreme Court decisions in Whitfield v. US, 543 U.S. 209 and United v. Shabani, 513 U.S. 10, which found that Congress had intentionally removed language from the statute negating the need to show an overt act to sustain a finding of conspiracy under the Act.  They also looked at the common law meaning of the term conspiracy, which met the same conclusion.  Thus, the court held that conspiracy under 101(a)(43)(U) does not require a finding of the commission of an overt act in furtherance of the conspiracy by one of the conspirators, and the Respondent was thus still removable.

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010).

A Chinese couple applied for asylum on the basis of their two United States citizen children.  The family alleged that the wife would be subjected to forced sterilization and the family to be subjected to fines because having two children is a violation of the China’s one-child-only policy.

As evidence of their claim, they submitted affidavits from family members and friends, newspaper articles about the country policy, and an affidavit from the wife’s mother stating that she has spoken with the local Family Planning office that would have jurisdiction over the family, whom informed her that the family would be subjected to the alleged penalties.

The Immigration Judge found the respondents’ testimony credible and the evidence submitted compelling enough to grant their application for asylum.  The Government appealed, alleging that they did not adequately meet their burden of proof.

The BIA reconsidered the respondents’ applications, and, agreeing with the Government, held that they did not meet their burden of proof.  The Appellate court found especially compelling State Department country reports that stated that US officials were not aware of any official policy in China that mandates sterilization because of the birth of two or more children abroad and instead reported that the government policy of prohibited the use of physical coercion to force sterilization.  The court deemphasized the articles submitted by the Respondents on the basis that they were not adequately authenticated, having to titled author and failing to provide any specific details that supported the Respondents’ contentions.  The court similarly disqualified the affidavits of the family members and friends, specifically stating that they should not be given heavy evidentiary weight since they are not subject to cross-examination and also failed to provide sufficient detail to meet the high burden of proof for fear of persecution.  Because they were not able to show that any specific evidence to show that the wife would likely to subjected to forced sterilization, and that no evidence was submitted to show that the fines would be severe enough to put them at an economic disadvantage, the court vacated the Immigration Judge’s grant of asylum.

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).

A Peruvian man came to America on a nonimmigrant work visa, but overstayed and subsequently engaged in unauthorized employment.  DHS later approved an I-140 on his behalf, but then issued him a Notice to Appear shortly after.  He argued before the Immigration Judges that based on his approved I-140, he should be eligible for adjustment of status under INA 245(i).  The Government argued that he is not eligible because of his period of unauthorized employment.  The Immigration Judge agreed with the Government and denied his application for Adjustment of Status.  On appeal, the alien argued that the unauthorized employment provisions of second 245(c) do not apply to adjustment of status under 245(i).  The Government rebutted this argument by asserting that, instead, section 245(k)’s unauthorized employment provision does.

The BIA looked at the plain language of the INA as a whole, and determined that the Attorney General does not regard unauthorized employment as a bar to adjustment of status, and instead, the Act means to specifically exempt aliens who would otherwise be barred from applying for adjustment of status because of unauthorized employment.

Thus, the Court held that an alien who is eligible for adjustment of status under 245(i) is not barred under 245(c) because of unauthorized employment and that the exception in 245(k) applies under 245(a).

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010).

In the United States, the immigration system and the criminal system are closely, but inconspicuously, related.  Attorneys and immigrants alike frequently fail to realize the potential ramifications for pleading guilty to a seemingly minor criminal charge.  In some cases, a misdemeanor drug offense can lead to removal from the country, regardless of any other positive factors favoring allowing the immigrant to stay.

The Supreme Court is set to reconsider this issue in Carachuri-Rosendo v. Holder.  Mr. Carachuri-Rosendo was a longtime legal resident of Texas, settled down with a fiancée and four children, all of whom are Unites States citizens.  But, after he had a couple of convictions for possession of marijuana and a tablet of Xanax, a common anti-anxiety drug, he found himself deported back to Mexico, leaving the life he had known for years behind.

Another example of this is Mr. Lemaine, a case cited in amicus briefs dealing with the same issue as Mr. Carachuri-Rosendo.  Mr. Lemaine came to the United States from Haiti at the age of three.  As a teenager, he was caught with a small amount of marijuana, but this case was dropped.  Then, in 2007, he was again caught with a small amount of marijuana, and his legal aid counsel advised him to enter a guilty plea, and agree to pay the mere $100 fine.  This normally would seem like the best way to handle such a charge; however, neither party was aware that this had drastic consequences for his immigration status.  Before he knew it, he was in handcuffs, on his way to Texas to face an immigration judge, and eventual deportation.

In neither of these cases, were the defendants able to raise defenses in their favor, such as how both have large amounts of family in the United States, with little to return to in their home country.  Nor does it matter that, in the grand scheme of our criminal justice system, the charges that were brought against them are minor; neither seemed to pose any large threat to public safety.

For now, both defendants must wait for a ruling in Carachuri-Rosendo v. Holder, their last hope for staying in the United States and continuing the lives they have known.

Democratic Senator Patrick Leahy of Vermont introduced the Refugee Protection Act of 2010 to the senate this month.  This bill hopes to make improvements to the current law, the Refugee Act of 1980, by making the process for asylum seekers more streamlined and accessible.  This is an improvement that the U.S. Committee for Refugees and Immigrants finds is crucial.

The current legislation requires a waiting period of a year before asylees can be granted work permits.  The proposed bill would eliminate this waiting period, allowing asylees to automatically become lawful permanent residents.  This is arguably even more important for asylees, who often times are fleeing terrible conditions in their home country and are often the most vulnerable, because it will not only provide them the means to be more self sustaining, but also aid in their assimilation to the United States.

The bill is cosponsored by Senators Carl Levin of Michigan, Richard Durbin of Illinois, and Daniel Akaka of Hawaii.

On February 25, 2010, the United States Court of Appeals for the Second Circuit determined that a woman’s repeated returns to her home country was not enough, in and of itself, to bar her claim for asylum.  Petitioner Nan Marie Kone grew up in Cote d’Ivori (the Ivory Coast) in a community that practiced female genital mutilation (FGM).  Since being subjected to the ritual as a young girl, she has had to cope with both the physical and mental harm she suffered.

Ms. Kone first came to the United States in 2002, and between the years began traveling back and forth between her home country and then United States.  During many of her times she returned to her home country, she suffered maltreatment, whether being arrested for her political believes or having family members murdered for their religious beliefs.  Following tumultuous events, she would seek refuge in the United States, but never gave up the hope that eventually the political and ethnic strife in her home country would be resolved.  Eventually, this hope dissipated, and she sought out asylum in the United States in 2005.

This petition was denied, based primarily on the evidence of her repeated returns to the Ivory Coast.  Asylum is based on the premise that a safe-haven will be given to those who face persecution in their home countries.  A finding of past persecution creates a rebuttable presumption that fear of future persecution is well-founded.  Evidence of FGM is generally held to be fundamental evidence of past persecution.  This places the burden on the government to show that by a preponderance of the evidence, the reasons for this fear no longer exist, because of changed circumstances.  In Ms. Kone’s case, the government argued that the evidence of her frequent visits back to her home country were enough to meet the burden of proof to show a change of circumstances.  Though the trial court agreed with this argument, the appellate court for the Second Circuit disagreed.  They instead held that while it may be relevant evidence, such evidence alone is not enough to meet the preponderance of the evidence standard.  Based on this finding, the court remanded the case for a new trial to reevaluate the circumstances surrounding Ms. Kone’s case in light of this new rule.

This holding, that the simple fact of safe return on a particular occasion does not negate the potential of future harm, can help provide precedence for many immigrants who are torn between facing heinous treatment in their home country and living a better life in the United States, at the cost of abandoning their family, friends, and previous lives.  By allowing more leeway for those who don’t up and leave their lives in one final move, this helps many of those in the worst situations have a greater chance of having hope of a better life once they have made their final decisions.

After unsuccessful attempt in 2006 and 2007, Congress has begun anew to address immigration reform.  With President Obama’s support, Senators Schumer and Graham have announced a plan to reform the immigration system with the ultimate goals of helping to end illegal immigration, while also fueling the US economy.  Some of the proposed legislation would require US citizens and legal immigrants to get new Social Security cards, which would be tied to fingerprints or some other biometric identifiers, allowing employers to easily verify that workers are here legally.  They also hope to create a system that would bring temporary workers to the US based on what the current economy needs.  In addition, the proposed immigration reform would hopefully provide paths for many of the estimated 10.8 million illegal immigrants in the US to gain legal status.  In addition, increased border patrol has been proposed to prevent more immigrants from entering illegally.  While the plan seems to have many benefits for both citizens and immigrants, it will require the support of both the Democrats and the Republicans, which may not be an easy task on an issue that has two divergent sides and competing ideals.

Republican and Democratic Senators announce a framework for immigration reform.

March 18th 2010 Senators Sens. Charles Schumer (D-N.Y.) and Lindsey Graham (R-S.C.) stated “the American people deserve more than empty rhetoric and impractical calls for mass deportation” in an editorial in the Washington Post. The proposal calls for substantially increased work place enforcement, mandatory biometric information in the form of a new card for all workers and the creation of a program to admit temporary workers.  Requirements are payment of fines, community service, english testing, payment of back taxes and admission of guilt for being undocumented.  It is unclear how many of the estimated 11 million undocumented immigrants would be able to adjust to a legal status.  The proposals also reinforce the United States policy of favoring immigration for skilled workers.

This effort must be seen in the context of other national political battles, in particular health care reform.  Without compromise on health care reform it is unlikely that comprehensive immigration reform will happen this year.