2020 – An Immigration Lawyer's Personal Look Back
I write this as the US House of Representatives votes to impeach Donald J. Trump a second time to remove him as US president. I cannot think of a better "end and beginning" to 2020-2021 and four years of the most chaotic, incompetent, illegal, immoral, and un-American rule by a US president that I have experienced in my lifetime. I like to think that's saying a lot since I am in my early 70s and have been a lawyer now for over 43 years. Perhaps Pres. Trump's signature issue has been racism and exclusion of foreigners from the United States. That is best signaled by his, presumably last "official" trip to the Southern border to affix his name (so characteristic of "Trump") to a small section of "the big, beautiful wall" along the US Mexican border, which he falsely promised "Mexico will pay for" and which he appears to claim has been completed, though in reality it was barely started. However, although Donald Trump failed to build the physical wall, he made substantial progress in trying to kill immigration through "executive orders," regulatory "rulemaking" and "Atty. Gen. decisions" from the Board of Immigration Appeals decisions contesting orders of removal in immigration court. You could say but the wall he tried to build out of paper was far more effective than the one he sought the build out of brick, mortar, and steel. It could take me literally days just to list the number of immigration policies and "rules" that this administration sought to enact to restrict or destroy immigration. I won't try that task here, but looking back I can say that just as the federal judiciary came to the rescue of our democratic system of government by rejecting the bogus, 60-plus lawsuits brought to contest his defeat at the polls last November as a result of "fraud," so also it is possible to say that the federal courts largely frustrated Trump's attempt to destroy the immigration system by regulation and rulemaking. US Attorney Generals have the right to review decisions by the Board of Immigration Appeals in removal (deportation) cases and to issue their own decisions affirming or changing them. They have this right because the immigration court system is not part of the formal judiciary of the United States under Article III of the Constitution, but is instead part of the US Department of Justice. (One of the reforms I would like the Biden administration to pursue is to make the immigration court system part of the federal judiciary, to remove the policy-driven bias that we have seen Trump's Attorney Generals bring to this power, and to make the courts truly independent. Now that the Democrats control the U.S. Senate in addition to the House of Representatives, that may be a real possibility). Near the top of my list of horrible Atty. Gen. decisions are Matter of A. B. and Matter of Castro-Tum. In Matter of A. B., former Atty. Gen. Jefferson B. Sessions decided to overturn years of precedent and rule that battered Hispanic women from countries that traditionally failed to protect women from deadly domestic violence did not have the right to claim asylum in the United States as members of a "particular social group," one of the categories spelled out in US asylum law as providing a ground for an asylum claim. Although that decision was substantially invalidated in a case decided by the District Court for the District of Columbia called Grace v. Whitaker, it continued to lead a zombie-like existence in immigration courts such as New York. Within the last year, the First Circuit Court of Appeals also heard a challenge to Matter of A. B., and held that it was so incompatible with basic principles of asylum law that it had to be rejected. However, since the federal circuit court of appeals decisions only represent "the law" in the territorial area under which the circuit court has jurisdiction (and there are 11 separate circuits in the United States) the geographical extent of this decision is limited. The permanent fix that is needed is a review and repudiation of this terrible decision by a new Atty. Gen. You won't hear much about the Atty. Gen. decision in Matter of Castro-Tum because it is so technical, but it is just as evil. Prior to it, there was an established regulatory procedure called a provisional unlawful presence waiver. This would allow someone who married an American but could not "adjust status" (obtain a green card while remaining in the United States) to remain in the United States and apply for a waiver based on extreme hardship to his or her spouse. But, if the foreign citizen was in immigration court, he or she could get their case "administratively closed" while awaiting a decision on the waiver, and if the waiver was granted, terminate the proceedings and return to the home country to get an immigrant visa.
In Matter of Castro-Tum, Sessions arbitrarily decided that immigration judges, who had availed themselves of this procedure for years, suddenly no longer had the authority to do so. I had used this procedure to get green cards for a number of foreign citizens in immigration court, thus preserving their ability to be with their spouses here in the United States. However, after this decision, I have one husband stranded in Honduras and suffering a long-term separation even though the alien relative petition filed by his US citizen wife has been approved. Here again, a federal circuit court, this time the Fourth Circuit, reviewed this terrible decision and decided it had no proper basis in law. But again, its decision is limited to the territory covered by the Fourth Circuit. We should have a permanent fix by review and repudiation of this terrible decision by a new Atty. Gen. The most recent, a similar decision by now former Atty. Gen. William Barr invalidates "family" as a particular social group that provides a basis for asylum. It is my earnest hope that that decision will be repudiated as well because it is as arbitrary, capricious and illegal as Matter of A. B. The sheer incompetence of the Trump administration in seeking restrictive regulations is nowhere better illustrated than by an October 2020 decision of the Ninth Circuit Court of Appeals outlawing a massive filing fee increase proposed by the Department of Homeland Security, whose only purpose appeared to be to make applying for immigration benefits financially impossible for a large percentage of the population. The court found that under the federal Administrative Procedure Act (APA) there is a basic requirement that federal rulemaking has a rational basis and that no such basis was shown by DHS in enacting the new fee schedule. This parallels the Supreme Court decision last year overruling Pres. Trump's attempt to discontinue the Obama administration's DACA (Deferred Action for Childhood Arrivals) or "Dreamer" regulations. Here again, the federal bureaucrat seeking to implement this decision did not comply with the basic regulatory requirements of providing a reasoned justification for rescinding the program. So many restrictions have been placed upon asylum claims at the Southern border that it is almost impossible to list them all. Among the most horrific was the so-called "Migrant Protection Protocols" which forced Central Americans seeking asylum and traveling through Mexico to remain in Mexico while their asylum claims were heard in "tent city" immigration courts that denied the applicants basic due process of law. That program was also recently invalidated by a federal court decision. Other barriers, such as the arbitrary refusal to entertain any asylum claims of the border due to alleged Covid-19 concerns have also been frustrated by a federal court decision, but not before anonymous harm was done to the people turned back. I won't even go into "kids in cages" which was and is a gross violation of human rights in addition to being a violation of immigration and international law. The Biden administration has promised to deal with these injustices, including the fates of 600 children lost in the system and separated from their parents, and I trust that it will make good on this promise. Perhaps the last outrageous set of regulations invalidated by a federal court injunction was a massive new, proposed revamping of our asylum laws in the guise of regulatory reform which would have completely gutted American asylum law. Mercifully, the Trump administration is running out of time to try this again, and that should be the end of it. In my next post, I will cover the most meaningful personal cases I handled in the past year.
Brian D. O'Neill Attorney at Law, LLC Immigration, Employment, and Business Law 55 Madison Ave., Ste 400 Morristown, NJ 07960