Saturday, November 18, 2006

First Circuit Asks Congress To Fix Ultra-Complicated Immigration Laws

As reported on Bender's Immigration Daily blog, the First Circuit on November 16, 2006, showed its frustration with the extremely complex, often-illogical system of immigration laws. It is not so much of a coherent system as it is a haphazard combination of statutes that were each written for specific reasons, but without an overall view of how they all combine together:
It is not the business of the courts to tell Congress what to do about public policy choices, but we are entitled to warn when the machinery that we help administer is breaking down. The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct. The regime is badly in need of an overhaul.
The First Circuit analyzed the development of section 212(c) relief -- Congress passed a narrow law allowing a certain type of waiver, but oddly enough only for those coming to the US who were kept out at the border, but not those the government seeks to deport. That violated equal protection by treating similarly situated people differently for no apparent reason.

So, the courts fixed it by extending it to those facing deportation. But because it is a court-written fix, the courts limited the waiver to those facing deportation if they would have been kept out at the border for the exact same reason. The First Circuit realized that Congress does not have consistent rules about what makes someone deportable and what keeps them out at the border. That's right, the same black mark on your record can make you deportable yet not permit them to keep you out at the border. Sounds strange, but it is true, and the discrepancy makes for strange, probably-unforeseen qualities of other narrow statutes.

This is what makes immigration law so complex and difficult to understand for ordinary people -- the laws and regulations often require such seemingly trivial details to qualify for some of the major ways to avoid deportation (or to get a green card), that you have to be an expert in immigration law to analyze what others would think is a straightforward case. This is why it is so important that people only get legal advice from immigration lawyers or accredited representatives (people working at non-profit organizations with specific certification from the Board of Immigration Appeals). Going to a notario, translator, or non-lawyer for help can often lead to major headaches and problems.


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