It has been more than a month since my last post, but the debate on Comprehensive Immigration Reform ("CIR") has continued, albeit with a certain twist pertaining to the tens of thousands of unaccompanied minors from Guatemala, El Salvador, and Honduras.
Here's what Republican Congressman Raul Labrador said in response:
Both sides appear to be using the unaccompanied-minors issue to support
their respective positions regarding CIR, and the political observers
are following suit.
I believe for three reasons that CIR is unrelated to the recent tremendous
increase of unaccompanied minors attempting to enter the U.S. First, despite
the large supply, there is simply no demand for unaccompanied minors in
particular as there is for the type of labor force in general that CIR
would assist the U.S. in acquiring. Second, the unaccompanied-minors issue
can be handled quickly and effectively once it is proven that one cannot
obtain a permanent home in the U.S. simply by making the journey to the
U.S. Of course, proving such a reality would require expediting the process
for disposing of the unaccompanied minors' cases. While there are
options for unaccompanied minors to obtain permanent lawful status in
the U.S., such asasylum and special-immigrant-juvenile ("SIJ") status, such options have strict eligibility requirements that
many of the recent unaccompanied minors simply will not be able or even
be willing to prove. Third, and related to the first two reasons, there
simply is no policy that would be supported by allowing otherwise ineligible
unaccompanied minors to remain permanently in the U.S. While family unification
is a U.S.-immigration-related policy, such a policy does not support the
unification within the U.S. of members of a family in which all are undocumented.
CIR presumably would help such individuals but only if they could prove
that they had entered the U.S. by a certain date that has long since passed.
It likely would not help the recent spate of unaccompanied minors.
If compassion is the sole basis for one's claim that the unaccompanied
minors should be permitted to remain permanently in the U.S., then such
compassion should be expressed in two ways: (1) assisting in changing
the environment in the countries from which the unaccompanied minors traveled
so that their obstacle-ridden migration is no longer, at least in their
and their parents' minds, required and (2) allowing for effective
legal representation for such unaccompanied minors so that they may use
the system in place, rather than attempting to override it, to accomplish
their goal of obtaining a permanent home in the U.S.
However, regarding the second way, as shown by recent immigration-related
decisions, even effective legal representation is not enough to obtain
a favorable outcome. For instance, and related to the issue of minors,
the U.S. Supreme Court in
Scialabba v. Cuellar de Osorio sided last month with DHS in holding that immigrant-petition derivative
beneficiaries, e.g., the children of foreign nationals who have had filed
for them an immigrant petition that would automatically include their
children, who are unable to accompany their immigrating parents because
they have aged out, i.e., reached twenty-one years of age for immigration
purposes prior to being permitted to apply for adjustment of status or
an immigrant visa, due to years-long quota-based wait times cannot maintain
the same filing date, otherwise known as priority date, as the original
petitions filed for their parents after their parents, who have successfully
lawfully immigrated, subsequently file petitions for them,
resulting in yet another years-long quota-based wait for the aged-out derivative beneficiaries.
Also last month, the U.S. Court of Appeals for the Ninth Circuit ("Ninth
Circuit"), the federal appeals court that hears appeals from decisions
by U.S. District Courts within the Western States as well as hears petitions
for review from decisions by the Board of Immigration Appeals ("BIA")
regarding removal proceedings conducted within the Western States, ruled in
Jiang v. Holder that an immigration judge's adverse-credibility finding relating to
an asylum applicant was justified given the Chinese-national applicant's
not raising in her testimony
only until prompted by her attorney the physical abuse that she suffered in detention in China and that made
up a substantial portion of her claim as outlined in her previously submitted
declaration.
Moreover, the Ninth Circuit ruled this month inBojnoordi v. Holder that the terrorism bar to asylum
applies retroactively, thereby including activity that occurred even prior to the official designation
of a certain group as a terrorist organization. Also this month, the Ninth
Circuit held in
Coronado v. Holder that a California methamphetamine-possession conviction could be used
to establish a controlled-substances-related ground for removability because
California's controlled-substances-possession statutory criminal offense
is not overbroad but ratherdivisible.
However, and in what appears as a contradiction toCoronado, at least one recent case shows that effective legal representation does
make a difference. In
USA v. Aguilera-Rios, the Ninth Circuit reversed a Mexican man's conviction for illegal
reentry because his prior removal was unlawfully based on a California
firearms-possession conviction that the Ninth Circuit ruled could not
be an immigration-related aggravated felony because California's firearms-possession
statutory criminal offense was indeed overbroad for not having an antique-firearms
exception
as found in the generic federal firearms-possession statutory criminal offense.
The confusion over whether one's state conviction is under an overbroad
statute as opposed to a divisible statute is part of the reason why CIR
is required because it represents an uncertain legal issue that the courts
have simply been unable to clarify. The tens of thousands of unaccompanied
minors who have recently sought a permanent refuge in the U.S. is neither
a reason to support CIR nor a reason to oppose CIR. It may be an enforcement-related-
or resources-related issue, but the law now in existence provides a clear
avenue for disposing of such cases. Using the unaccompanied-minors issue
as a tool in the overall CIR debate is a distraction in the continuing
tug-of-war that is CIR.