This past week saw some activity on the issue of Comprehensive Immigration
Reform ("CIR") but not on its passage. Instead, it appears that
life without CIR is an idea that is becoming acceptable to those who previously
championed it. The lack of a final resolution is the primary problem with
the U.S. President and the U.S. Courts attempting to resolve immigration-related
issues without participation by the U.S. Congress.
For example, news came out a few days ago that, largely due to a recent
surge in the number of arriving aliens seeking protection here, U.S. Citizenship
and Immigration Services ("USCIS"), which is a component of
the U.S. Department of Homeland Security ("DHS") and which is
responsible for conducting credible- and reasonable-fear interviews of
those who arrive at a land, air, or sea port of entry to the U.S. and
who claim to have a fear of returning to their home countries, will
make it more difficult
for such asylum seekers to establish the requisite fear that would permit
them to pursue such fear-based applications formally. The result, other
than more attempted unlawful entries, will be more people being returned
to their home countries without the opportunity even to have their applications
heard by an immigration judge. One hopes, particularly due to the lack
of passage of CIR by the U.S. Congress, that this new level of discretion
is exercised by USCIS officers in a uniform and fair manner.
Turning to the federal courts, the U.S. Court of Appeals for the Ninth
Circuit ("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, held in
He v. Holder
that a Chinese man's compliance with the consequences of not abiding
by China's one-child policy and, relatedly, his not being persecuted
on account of his not abiding by it
led to a finding
that he did not have a well-founded fear of persecution should he be returned
to China. While such a finding appears to be consistent with the shift
in the USCIS policy toward making it more difficult for asylum seekers
to establish the requisite fear required to be permitted to pursue asylum,
the likelihood that the Chinese man in
He
will actually be deported any time soon is low. Instead, he has a high
probability of simply remaining in the U.S. without authorization, trapped
due to his unlawful status combined with his unwillingness to leave. The
continuing presence in the U.S. of individuals with final removal orders
that have already received federal-court review causes the entire immigration-related
apparatus to appear impotent. However, without the passage of CIR by the
U.S. Congress, this appearance will simply continue to exist.
The lack of resolution caused by the continued unwillingness of the U.S.
Congress to pass CIR will only increase the fairness gap. Nevertheless,
there are still some who keep fighting for CIR such as the young lady
who last week revealed her undocumented status to former Senator Hillary Clinton.
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