NOI 30: U.S. Immigration Courts: Part 4

Last Friday, Attorney General Bill Barr issued two more opinions that impact the discretion of Immigration Judges and the Board of Immigration Appeals.

Jacob Tingen: Here we are, today again, Nation of Immigrants. Sorry, I’m getting it set up.

Jacob Tingen: Today, we’re going to be talking about US Immigration Courts. We’re coming back to that topic. Last time we talked about Attorney General certification, and I thought we’d move on the next time we touched based on Immigration Courts. And then, some decisions came out last Friday, Attorney General decisions. We’ll briefly discuss how that happens again, but then I’ll dive into these actual decisions, and talk about this action and activity by the Attorney General in the Immigration Court system is affecting things, and in particular these cases.

Jacob Tingen: So, thanks again for tuning in, Nation of Immigrants. Here we go.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a Nation of Immigrants.

Announcer: A podcast about US Immigration Law, with your host, Jacob Tingen.

Jacob Tingen: All right, so like I said, we’re coming back into US Immigration Courts, but before we get too far into it, I wanted to share some things. We got these neat stickers, I don’t know if you can see that, Nation of Immigrant stickers. I got that one for my computer. We have those for sale on the store, as well. Like I said, we’ve got t-shirts, and mugs, and those kinds of things. Also, you can always donate to support the podcast. You can navigate to, and make a donation to support the work that we’re doing here, both at the podcast and at the firm, and support paying immigrants’ legal bills. It’s really important, what we’re doing. Frankly, the conversation and discussion that we’re having in our country right now, and everything that’s happening.

Jacob Tingen: So, let’s jump to the headline. The headline is AG Barr issues two decisions limiting ways immigrants can fight deportation. Pretty accurate headline. We talked about this the last time we had an Immigration Courts episode. What we talked about then was that the Attorney General can just jump in and pluck out any case that’s currently being heard in the Immigration Court. He has this Certification power that allows him to do that. Sometimes the Board, the Panel of Appellate Immigration Judges can send a case over to the Attorney General, but sometimes he can just jump in and pluck them out.

Jacob Tingen: So, what’s interesting here is the decisions that he chose, these aren’t going to be as controversial as other decisions that have been issues. You know, Matter of AB, we mentioned, was very controversial, essentially just overturned years of precedent. Matter of LEA, again, another attempt to, essentially, overturn well-settled law. Not great, not great looks. People tend to be less sympathetic towards people with criminal convictions, and these two cases have to deal with the impact of a criminal history on an immigrant for removal proceedings.

Jacob Tingen: So, I am also a little more understanding that we would deport people with criminal histories, and that was Obama’s general deportation tactic and strategy. Well, if they’ve got criminal histories, they’re a priority for removal. If they don’t, they’re not. I think most people can get behind that. But, at the same time, I’ve also learned that there are unique circumstances in many, many people’s lives, many immigrants lives, that would call for compassion and humanity in the decisions we make, especially if they’ve lived her for a long time, and have US citizen family.

Jacob Tingen: So, this is an opportunity to talk about a form of relief from deportation called Cancellation of Removal, because it will be relevant here, in the conversation we’re about to have. So, Cancellation of Removal is a kind of relief that’s available to people who have been physically present in the United States for a period of 10 years or more, continuously. Haven’t been convicted of certain criminal offenses, and also if they establish that their removal from the country would cause extreme, exceptional hardship to their spouse, parent, or children, who are US citizens. Okay, this is a wonderful, humanitarian form of relief. It’s a redemptive form of relief, I’m a fan.

Jacob Tingen: Then, there’s this additional requirement in here, which is the crux of the matter in the case that we’re looking at today, which is that not only do you have to have been present continuously in the US for 10 years, not only do you have to have a tie to the United States, such as a US citizen spouse or child, but you also have to have been a person of good moral character for that 10 year period.

Jacob Tingen: Now, what’s interesting is that, very frequently, we’ll have clients get pulled over because a broken taillight, and then they get a ticket for driving unlicensed. In Virginia, if you get too many of those, they’ll give you jail time, and then immigration picks you up. For those, their criminal history is not an issue, and they’re good moral character is also not an issue.

Jacob Tingen: Then, we also have people who get into a little bit more criminal trouble. So, we’ve got people who’ve got DUIs, or multiple DUIs. So, then, it is a discretionary form of relief, it’s kind of up to the judge at that point. So, you have to start asking questions like, does this person actually have good moral character, yes or no? DUIs, even multiple DUIs, have never been a bar to good moral character, and they are not currently a bar to good moral character.

Jacob Tingen: The only thing that the opinion here does, in matter of [inaudible 00:05:53], is the Attorney General opinion issued by Bill Barr. The only thing that it does, is that it says that there’s a rebuttable presumption that if you’ve got multiple DUIs, you don’t have good moral character. That means that when you present your case in removal proceedings, you would need to rebut that presumption. You would need to present evidence, demonstrating that you are a person of good moral character.

Jacob Tingen: What I don’t like about the opinion is that he says, “Evidence of rehabilitation is not the rebuttal he’s looking for,” which doesn’t make any sense. How else can they rebut if they can’t show that they’ve reformed, gone to courses, have their Year chip from Alcoholics Anonymous, and those kinds of things? I think that’s lame, in the opinion, that there’s no opportunity for redemption, again. So, I’m a big fan of giving people opportunities. Of course, sure, rebuttable presumption, they’ve got to prove it. They’ve got to prove that they’ve changed. I think, evidence of rehabilitation should absolutely be considered. He doesn’t say that it shouldn’t be considered, but he says that that alone is insufficient.

Jacob Tingen: The thing is, judges have to do this balancing test anyway. I feel like this opinion was not needed, and pointless, frankly. As an attorney, as I’m thinking strategy going into a Cancellation of Removal hearing, whether it’s written or not, I’m assuming that if my client has a DUI, I’ve got to rebut a presumption that he doesn’t good moral character, she doesn’t have good moral character. That’s how I’d prepare for the case anyway, even though I know that it’s not a bar to good moral character. I still have to address that issue, and I know that the government attorney is going to bring it up as an issue.

Jacob Tingen: So, the opinion is interesting, and I can see why it was written, but I don’t see it as necessary. Frankly, I don’t think it’s going to make a lot of waves, unfortunately. We tend to pre-judge people with criminal histories, which is, that’s unfortunate.

Jacob Tingen: What’s interesting here is the things, the reasoning, the rationale that he used, saying that it’s a scarce form of relief, “Cancellation of Removal is a coveted and scarce form of relief.” So, they only issue 4000 of these Visas each year, and 3500 are issued on January 1. 500 are reserved for detained cases throughout the year. Which creates this backwards scenario, where if you’re detained while your case is heard, you’re going to get your Green Card faster than somebody who is not detained. Presumably, if you remained a detained throughout your proceedings, then your criminal history is worse. So, people with worse criminal histories will get their Green Cards faster. That’s just, hypothetically, right? That’s just another example of the strangeness that happens, and unintended consequences that happens with a lot of these decisions.

Jacob Tingen: Again, I see the rationale. I’m not 100% behind. I see that it’s not going to be controversial because most people say, hey, especially if you’re going to be an immigrant here, don’t drink and drive. That makes sense. I would add, though, that, for me, evidence of rehabilitation matters a great deal. People should get second chances, and I think that evidence should be considered. All right, that’s that case.

Jacob Tingen: Let’s look at the other one, which is Matter of Thomas and Matter of Thompson. So, what William Barr did in this case, and this Attorney General opinion is he plucked two cases out that had seemingly similar factual circumstances. Then said, “Oh, look, there’s confusion.” You know, decided, well, we’re going to use this test to analyze things, and pick the harshest version possible. Which, again, not surprising under the current Administration.

Jacob Tingen: So, basically, there’s this phenomenon that exists where, when people get certain criminal convictions, certain criminal convictions under the Immigration and Nationality Act, are viewed more harshly than others. So, the idea is, if, for example, you get convicted of something considered an aggravated felony, you’re not eligible from Relief from Removal, you will be deported. There’s not much you or any other attorney can do, unless you can prove that the government is going to torture you upon your return to your country of origin, then we’re going to deport you. That’s, you know, the consequence of getting an aggravated felony, okay?

Jacob Tingen: Now, that sounds well and good, we don’t want aggravated felons running around our country, I get that. It’s a whole safety concern. Then, when you look at the actual list of things that can be considered aggravated felonies, it becomes a head scratcher. One of the things that can be considered an aggravated felony, for example, is … The list starts off with rape, and murder. I’m like, “Okay, great. Aggravated felonies, I get it.” Then, later on down the list, it says things like, a theft offense of which the term of imprisonment is more than 1 year. So, that’s shoplifting. Again, not great, but hardly what I would call an aggravated felony. In most states, it’s a misdemeanor charge, and depending on the value of the goods stolen, it’s a minor misdemeanor that could likely be dismissed with community service and those kinds of things.

Jacob Tingen: That’s part of my issue with this case, is that … That’s a good place to start. You’ve got aggravated felonies, and you’ve got a crime that, frankly, at the state level, just isn’t a felony, but could be considered one under the Immigration and Nationality Act. So, sometimes what happens is you’ll get a client who has a criminal charge and conviction, and then you’ll take it to the Immigration Court. At that level, it’s decided that, oh, well, your client has an aggravated felony. You might go back to the state level and say, “Hey, is this what you really intended? Because this is a low level crime, I’m sure you didn’t expect this person to be deported based on such-and-such a crime. Can we modify this sentence somehow?”

Jacob Tingen: This opinion that Attorney General Barr wrote looks at, you know, the state of things among the BIA. He talks about these two different tests that, if the order is modified that the BIA doesn’t consider a modified order, if the state court took a second look at the sentencing and modified it, versus an order that the state court just clarifies. There is a difference there, right? If I’m just modifying the order, then I’m changing it for the immigration benefit. Okay, fine. Or, for the resulting lack of an immigration consequence. If I’m just clarifying and saying, “No, I didn’t mean a year.” Well, then it’s not an aggravated felony at all, and I think that’s good reasoning.

Jacob Tingen: That was the state of affairs, and then Barr comes in and says, “No, we’re going to get rid of those tests. We’re going to use this harsher test.” Which is, was there substantive or procedural defect in the underlying proceedings? If not, then they’re convicted of the crime, no matter what. You can’t change it or adjust it. I think this decision does bring up a lot of due process concerns.

Jacob Tingen: Let’s start here. Our criminal process is not perfect. Anybody who has ever been in a court, or a judge understands that yes, we’re a country of high ideals, and laws, and we’re all trying to do the best we can. But, our criminal justice system is a far cry from perfect, which is why I advocate for mercy in as much as possible. So, what’s interesting here is that a lot of immigrants will get a public defender, will get defense council, and they’ll go, and they’ll go into a criminal hearing. Their attorney might advise them, “Hey, just take this plea deal, this is the best deal you can get.” The attorney might think that in their own head, and the immigrant just says, “Okay, sure.” They’ll believe what the criminal defense attorney tells them.

Jacob Tingen: Then, some of the immigrants are savvy enough to say, “Hey, is this going to affect my immigration status?” Some of the defense attorneys might say yes or no. They have a duty, under a Supreme Court precedent to find out, and know that answer beforehand. Although, I guess, not all do. Sometimes, we’ll actually have criminal defense attorneys call us up and say, “Hey, what are the immigration consequences of this? Or, what should I try for?” Sometimes, you just honestly can’t get a better plea deal, if you’re a criminal defense attorney.

Jacob Tingen: If you’re a savvy criminal defense attorney, you can go into the court, you can explain it to the prosecutor, you can explain it to the judge and say, “Hey, look I know that 99% of the time, if somebody is charged with this, we do things in the following way and the following plea deal. That’s not going to work for this client, because it will have this unintended consequence, where they’ll be deported back to wherever.” Where they might be subject to harm, or those kinds of things. Say, “Hey, instead of sentencing them to a year, can I get 11 months and 29 days?” Frequently … I don’t do criminal, but we’ve worked with a lot of criminal defense attorneys. Frequently, when we’ve talked with criminal defense attorneys, and they try that strategy in court, that works. Most judges are like, “Sure. 11 months and 29 days.” Prosecutors are like, “Fine.” That’s doesn’t happen in every case.

Jacob Tingen: Well, in this case from the Attorney General, he’s saying, you can’t go back and have any clarification come through. Whatever it is, is whatever it is. The problem here is that state laws don’t contemplate immigration consequences. They shouldn’t, right? Immigration judges should consider the impact of state laws, and they do. What Bill Barr has done, in this case, is he’s foreclosed the opportunity for immigration judges to engage in any kind of analysis, individualized analysis, and give immigrants due process.

Jacob Tingen: So, in my view, it’s not a great decision. He’s couched it in language, and a factual scenario, that looks like he was resolving a dispute. The thing is, both of those decisions that he resolved came out of the BIA. Yeah, you know, frankly, the factual scenario was different. One of the orders was modified, one of the orders was clarified. That’s a significant difference.

Jacob Tingen: So, it’s clearly just part of this campaign from the Trump Administration to be more harsh. It’s like the other opinion that didn’t need to be written, but now it is written. There’s a rebuttable presumption that I’ve you’ve got more than one DUI, maybe you don’t have the moral character that you should possess. Now, we’ve got this other opinion that says, hey, no modifying an underlying criminal conviction sentence, just because it might have unintended immigration consequences, that’s too bad.

Jacob Tingen: Frankly, I think that as immigrants become more savvy to it, as judges become more savvy to it, as prosecutors become more savvy to it, most prosecutors, and judges, and defense attorneys I know who become savvy to this issue say, “Hold on. If he takes this plea deal, then he’s going to be deported?” They said, “That’s absurd. This is not what this is about.” That’s not what our criminal justice system is about.

Jacob Tingen: Now, I know that there are probably many people listening to this who are thinking, “Why do we care about criminal immigrants? They’re criminals.” Again, I’ll just come back to this. You know, if we don’t protect these groups of people, then we’re not preserving due process for everyone. It’s a fight worth having. Then, also, I just, again, believe in the power of redemption, and coming back. There are some people who probably can and should be deported, right? I’m not going to deny that. Within our system of laws, we should make it possible for people to change, and grow, and learn.

Jacob Tingen: So, that’s it for Nation of Immigrants. If you like what you’re hearing, please donate, please help us. Support the podcast, go to, subscribe on YouTube, follow us on Facebook and Twitter. I appreciate everybody who has been following, commenting, listening, watching. It’s great to have all of you here.

Jacob Tingen: Thanks again, and we’ll be back next time with, hopefully, more details about the US Immigration Courts, or whatever is happening in immigration in the news. Thanks.

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