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Being Kept Out v. Being Trapped In: Enforcing the Immigration Laws in the Absence of Comprehensive Immigration Reform

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.