Today, an article entitled “Hopeless – Often Pointless – Cases Clog Immigration Courts” was published on the “Center for Immigration Studies” website. I won’t link to it, because we don’t have an interest in fueling traffic to an organization labeled by the Southern Poverty Law Center as a nativist hate group. But several contentions in the article really demonstrate quite well how little the CIS understands the immigration laws that it criticizes and eventually wishes to re-write.
In one breath, the author points to Matter of Valenzuela as a “stunning example” of frivolous immigration cases litigated by feckless immigration attorneys. That case dealt with the ability of K-4 nonimmigrant visa holders (who are the children of Fiancee visa beneficiaries) to adjust their status by some means other than their parent’s marriage to the original K-1 petitioner. In the article the CIS author says that because Mrs. Valenzuela (the author apparently refuses to use her name, only referring to her as “the Filipina”) was “married to a U.S. citizen” she “could easily have secured a green card for that reason.” His point is that the K-4 issue is frivolous because she could have become a permanent resident through her marriage. This statement is refuted by the author only 5-paragraphs later, when the author correctly observes that “[w]hile she could have secured full green card status as a child of a K-3 had she applied in time, the law does not permit her to adjust from K-4 to a green card because of her (the daughter’s) marriage to a U.S. citizen.”
Both things are true: CIS has no problem punishing little children for not getting their papers in order, and, had Mrs. Valenzuela left the United States and re-entered, she could have gotten her permanent residence through her marriage. But this observation ignores a crucial and frankly inhumane portion of IIRIRA, the terrible 1996 law drafted by individuals behind CIS and politicians it supports. After her K-4 visa expired, Mrs. Valenzuela most likely began accruing “unlawful presence.” And because that “unlawful presence” extended for more than a year, Mrs. Valenzuela would have been barred from returning for ten years. INA 212(a)(9)(B)(i)(II).
The author further fails to discuss the prevailing law on K-4 adjustments prior to Valenzuela: that there was none. In that environment, when facing the prospect of a ten-year mandatory stay in the Phiillipines before reuniting with her spouse, why not try to appeal the K-4 adjustment issue? The CIS author calls the appeal a “sure loser” but there was no controlling case law prior to Valenzuela, which is why the BIA published its decision in the first place. At bottom, it seems CIS not only misunderstands or intentionally mispresents the current Immigration laws but does so to advance its own agenda that all immigration, even legal immigration, is bad.
A further reason the appeal was not frivolous: a denial from the BIA is not the end of the matter. Anyone notice how often the BIA has been reversed by the Supreme Court in the last decade? Since INS v. St. Cyr, the Supreme Court has heard 17 appeals from orders of the Board of Immigration Appeals. Of those cases, the alien won reversal or remand 10 times and lost 7 times. If you throw in Padilla v. Kentucky, which was not a direct appeal but was an Immigration case, it becomes 11 to 7. That’s an incredible reversal rate for the Board and only goes to show that even cases that are denied by the Board and by the Circuit Courts (which must defer so strenuously to the Board’s decisions that often they lack the power to correct real errors) may not be frivolous.