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Comprehensive Immigration Reform Appears Dead

Comprehensive Immigration Reform (“CIR”), the proposed legislation that would bring legal status to millions of undocumented individuals in the United States, appears to have all but been defeated in the United States Congress. Seven Members from both major political parties in the United States House of Representatives (“the House”) had formed a temporary coalition to seek passage of a comprehensive legislative bill that once passed would be the first major step forward to CIR becoming law since the United States Senate passed a legislative bill earlier this year in the summer. However, the Republican members of the “Gang of Seven” as the temporary coalition was called backed away from the proposed legislation after being criticized by more conservative elements within their political party. The breakdown of the coalition has already been acknowledged by the major media outlets as can be seen here. Even President Barack Obama’s former press secretary Robert Gibbs went on nationwide television and said himself that CIR appears dead.

Although the Democrats are attempting on their own to salvage the CIR effort, the latest breakdown combined with the fact that the Republicans have a majority in the House shows that CIR is likely never to be signed into law.

Nevertheless, those who would have benefited from CIR if it had passed are not necessarily without any options. In recent years, the United States Department of Homeland Security has increased use of prosecutorial discretion, which includes administratively closing pending removal proceedings without issuance of an order of removal, granting stays of removal to those already ordered removed, and issuing Deferred Action for Childhood Arrivals (“DACA”) to those individuals brought to the United States at a young age. The United States Department of Homeland Security has issued a great deal of guidance on such a shift in policy with the latest guidance coming in the form of a memorandum on maintaining family unity found here. That same agency worked cooperatively with the United States Department of State to allow certain individuals, who are within the United States without lawful status and who would be deemed inadmissible upon departure solely for unlawful presence, to apply for a provisional waiver prior to even departing for an immigrant-visa interview abroad.

The federal courts have followed suit. For example, the United States District Court for the Central District of California last month ordered that foreign nationals detained within that court’s jurisdiction must be given a bond hearing at which they can actually be released. That order, found here, makes clear that its language is to be interpreted broadly and consequently is meant to apply to most immigrant detainees held in immigration custody for more than six months regardless of the current status of their removal proceedings.

Additionally, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which is the federal appeals court that hears all petitions for review from the Board of Immigrations Appeals (“BIA”) regarding removal proceedings that take place in several Western states including but not limited to California, Arizona, Nevada, Washington, and Oregon, issued a decision today confirming its overturning of a BIA decision that found a foreign national not to be credible regarding his asylum application. The case, Bassene v. Holder, held that the BIA was wrong in concluding that alleged inconsistencies in two separate applications filed by a Senegalese man amounted to his being inconsistent and therefore dishonest. The Ninth Circuit agreed that the foreign national reconciled the alleged inconsistencies and even went out of its way to acknowledge that the foreign national’s asylum application was timely despite its being filed more than a year after his last entry because he filed it within a reasonable time following the expiration of his nonimmigrant status and of his discovery that he initially had filed the wrong form.

Therefore, for those foreign nationals willing to put in a little bit of energy to resolve their immigration matter, opportunities are there. Those who instead want for legal status to be delivered to them on a silver platter so to speak will keep waiting for CIR while these opportunities pass them by.