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Shooting Fish in a Barrel: Government and Courts Have Focused Immigration-Enforcement Efforts on the Easiest yet Least Threatening Targets

An article in today's New York Times shows that despite the talk of a more compassionate deportation policy the U.S. government's enforcement of the Immigration Laws has focused more on removing from the U.S. individuals who do not pose a threat. One of the results of such rigid enforcement policies is the tremendous increase in illegal-reentry and in reinstatement cases regarding foreign nationals who return to the U.S. following a removal oftentimes to reunite with U.S.-citizen family members who are already in the U.S. When someone has already been deported, his/her returning to the U.S. without authorization may result in his/her being prosecuted in federal criminal court for the crime of illegal reentry. Prosecuting an illegal-reentry case is relatively not difficult because it is a strict-liability crime, meaning the intent or motive of the foreign national is of no consequence. Moreover, whether or not any illegal-reentry prosecution occurs, the foreign national may be removed again not pursuant to a new removal order but rather pursuant to reinstatement of the original removal order, thereby bypassing the normal procedural safeguards afforded in most removal scenarios. Unsurprisingly, with the increase of illegal-reentry prosecutions and of reinstatements, there have been more court challenges to the validity of these tools used by the U.S. government.

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from U.S. District Courts in the Western States as well as petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal and reinstatement proceedings conducted within those same Western States, issued three decisions recently regarding foreign nationals who had already once been deported from the U.S. and who either were facing illegal-reentry prosecution or reinstatement of the previously issued removal order. In USA v. Lopez, the Ninth Circuit found at the beginning of this month that a foreign-national criminal defendant was properly convicted of illegal reentry despite the U.S. government's failure to produce evidence that he was actually previously ordered removed. The Ninth Circuit found that evidence of the removal itself, and not necessarily in combination with actual evidence of a removal order, is all that needs to be produced for one to be found guilty of illegal reentry.

Also regarding an illegal-reentry prosecution, USA v. Hernandez-Arias, issued last month by the Ninth Circuit, surprisingly held that a foreign national's underlying removal order was valid, and therefore could form the basis for his prosecution given that he illegally reentered after its execution, even though it was based on an allegation that he had never been admitted or paroled to the U.S. despite his previously being granted temporary resident status. Although ultimately terminated, the foreign national's grant of temporary resident status still would be nevertheless accepted by many as evidence of an admission. The Ninth Circuit at least attempted, although in faulty analysis, to reconcile the seemingly unlawfully issued removal order with its holding by finding that the termination of the foreign national's temporary resident status amounted to reversing his admission, in much the same manner a revocation, which is separate and distinct from a termination, would have. It will be interesting to see whether the decision will be overturned.

Turning to reinstatement, the Ninth Circuit held at the very end of last month in Ortega v. Holder that simply having available before the effectiveness in 1997 of the U.S. Congress's passage of the current reinstatement provision, but not taking until after such effectiveness any meaningful action toward pursuing, a form of relief from reinstatement does not in any way bar a reinstatement of a previous removal order. It is unclear how the foreign national could have been permitted actually to pursue such relief before being placed in reinstatement proceedings, which may have been necessary for there to be jurisdiction over his application, but the Ninth Circuit did not concern itself with such a practical issue. What these three decisions show is how the U.S. government's actual aggressive policy of enforcing the Immigration Laws against relatively nonthreatening foreign nationals is buttressed by the federal court's unwillingness to find fault with clear flaws in such enforcement.

In contrast, the Ninth Circuit held in Ceron v. Holder at the very end of last month that a foreign national convicted of assault with a deadly weapon other than a firearm may not have been convicted categorically of what's known in the Immigration Laws as a crime involving moral turpitude ("CIMT") that would result in a ground for removal. Consequently, the Ninth Circuit remanded the matter to the BIA to decide on the issue. While protection of dangerous criminals may not have been the intention of the Ninth Circuit, these recent decisions combined with the information found in the New York Times article published today show that such is the result and that foreign nationals with immigration-related issues need to stop hoping for Comprehensive Immigration Reform ("CIR") and need to start dealing with the reality of their cases.