Law Student Writing Contest Winners Archives - Page 2 of 2

Not All “Entries” Are Equal – The Law of “Entry” and “Admission” for Purposes of the Immigration and Nationality Act

The National Law Review is pleased to announce the winner of the Fall 2012 Law Student Legal Writing Contest, Laura B. Homan from the Chicago-Kent College of Law whose article, Not All “Entries” Are Equal – The Law of “Entry” and “Admission” for Purposes of the Immigration and Nationality Act, was featured in The National Law Review:

I. Introduction

The timing of an alien’s admission to the United States is an important one under theImmigration and Nationality Act (“Act” or “INA”).¹Since the enactment ofIllegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)² the Board of Immigration Appeals (BIA or Board) and the federal circuit courts have faced a recurring question as to the proper interpretation of the Act’s removability statutes. The knot in this interpretation question comes from Congress’ implementation of the term “admission” as a substitution for the previously used language of “entry”.³ The pre-IIRIRA term of “entry” was defined as any unrestrained crossing of the United States border.4 While IIRIRA substitution language defines “admission” and admitted to mean the lawful entry of the alien to the United States after inspection and authorization by an Immigration Officer.⁵

In light of the developing precedent and changing interpretations of the term “admission” the purpose of this article is to analyze and to determine an alien’s removability under the INA.

II. Current Statutory Framework

IIRIRA became law on September 30, 1996.⁶ Among the many dramatic changes IIRIRA delivered, IIRIRA consolidated deportation and exclusion proceedings into one removal proceeding.⁷ Before IIRIRA, aliens who entered the United States, even without inspection, were subject to deportation proceedings; however, aliens who had never entered the United States or were paroled into the United States were subject to exclusion proceedings.⁸ Under IIRIRA the grounds for inadmissibility grew to include unlawful presence.⁹ Among those aliens who are unlawfully present are aliens who entered the United States without inspection and aliens who overstay their nonimmigrant visas.¹⁰ All aliens who are not both inspected and admitted to the United States are inadmissible and subject to grounds for inadmissibility; therefore they are removable aliens.¹¹ IIRIRA also added to the categories of deportable aliens under INA section 237.¹²

Most significantly, IIRIRA created the new term “admission” and displaced the former terminology of “entry”.¹³ Admission requires that an immigration officer inspect and admit an alien.¹⁴ Pre-IIRIRA, the term “entry” was defined as the physical act of crossing into the borders of the United States and included aliens who evaded the inspection process.¹⁵ When IIRIRA replaced the definition of “entry” with new language and a different definition -“admission”- Congress did not reconcile all of the provisions in the INA to reflect this change in language.¹⁶Because the definition of “admission” or “admitted” requires inspection and authorization by an immigration officer under definition INA section 101(a)(13) it begs the question whether “admission” or “admitted” maintains the same meaning throughout the INA.¹⁷ Specifically, entry and admission make a difference when considering the procedure for removal because removability may depend on the timing of the alien’s admission or entry. ¹⁸

Under the INA an alien can be removed for acts that rendered him inadmissible at the time of admission and an alien can be removed for committing prohibited acts after his admission to the United States.¹⁹ In some of these removability provisions IIRIRA used “after admission” or “admitted” and replaced the concept of previously used “entry”.²⁰ This distinction is critical. Some of these grounds of deportation contain wording which requires an admission following the alleged deportable conduct.²¹

When an alien gains admission into the United States in the expected way of first time entry from abroad on an immigrant visa and is inspected by an immigration officer at a port of entry IIRIRA’s adoption of “admission” causes no issue. However, IIRIRA’s adoption of the term causes wrinkles when an alien enters the United States on a nonimmigrant visa and subsequently adjusts his status to that of a lawful permanent resident. Congress did not specify if this alien’s adjustment of status is considered an “admission”. Another issue created by IIRIRA “admission” language occurs if an alien has been admitted or has entered the United States more than once – the question becomes which admission or entry is controlling for grounds of deportation under INA section 237(a).²² Further issues arise when an alien enters without inspection, adjusts his status to that of a lawful permanent resident, and then commits a crime. Congress failed to explicitly cover this situation when it enacted IIRIRA or in any subsequent amendments, and the Ninth Circuit has been left to resolve this issue.

When Congress substituted the term “admission” for “entry”, Congress did not express Congressional intent or purpose for this substitution of language.²³Therefore the ambiguous definition of “admission” under IIRIRA presents a question of statutory construction and speculation. For example, although the statute is silent on this possibility, Congress may have intended to include the ground of deportability codified as INA section 237(a)(2)(A)(iii) to apply to an individual who adjusted his status. However, it is unclear whether the process known as “adjustment of status”²⁴ can constitute “inspection and authorization by an immigration officer”²⁵ and therefore be considered an “admission” as defined in section 101(a)(13)(A) of the Act. The plain language of the Act permits an alien who entered without inspection to adjust status and be lawfully admitted for permanent residence.²⁶ Because the plain language of the Act does not resolve whether this alien who entered without inspection and subsequently adjusted status was “admitted” as defined by section 101(a)(13)(A), can this alien be removed based on behavior after admission? Even when this question is resolved, further statutory ambiguity remains. If the alien who entered without inspection is considered “admitted” when he adjusts status, the statutory language is unclear how to interpret that alien’s date of admission-
was the alien admitted when the alien crossed the border into the United States or was the alien
admitted when he subsequently adjusted status?

This article will discuss the development of case law surrounding removability provisions in INA section 237(a)(2)(A)(i), section 237(a)(2)(A)(iii), and section 212(a)(9)(B)(i)(II) in light of IIRIRA use of “admission” in the Act.²⁷

III. Historical Perspective of Removal Proceedings and Alien Entries

Pre-IIRIRA aliens who entered the U.S. by evading inspection were entitled to deportation proceedings and the benefit of cancellation of removal.²⁸ Under IIRIRA, aliens who enter by evading inspection have not been “admitted” into the United States.²⁹ Since the enactment of IIRIRA, aliens who entered without inspection do not have the same procedural and substantive benefits in removal proceedings as an alien who has been admitted to the United States.

In Matter of Pierre,³⁰ Haitian refugees awaited inspection on their boat outside the port of West Palm Beach, Florida; they were never admitted into the United States by any immigration officer and subsequently detained. Pre-IIRIRA case law in Matter of Pierre defined an “entry” in the United States involved “(1) a crossing into the territorial limits of the United States, i.e. physical presence; plus (2) inspection and admission by an immigration officer or (3) actual and intentional evasion of inspection at the nearest inspection point, coupled with (4) freedom from restraint.”³¹ Therefore without effecting an “entry” the aliens’ proceedings were properly held to be exclusion proceedings as determined under INA section 291 which provided that any person who applies for admission to the United States must establish that he is not subject to exclusion.

Current IIRIRA statutory framework merged the previously separated deportation proceedings and exclusion proceedings (as described in Matter of Pierre) into one. The IIRIRA merger of proceedings resulted in the birth of “removal” proceedings and the requirement of lawful admission for many immigration benefits, including the eligibility for adjustment of status under INA section 245. ³²

IV. Understanding the Date of Admission Precedent

A. BIA’s First Interpretation of “Admission” Under IIRIRA

The BIA first considered whether an adjustment of status constituted an “admission” for the purposes of removability under INA section 237 (a)(2)(A)(iii) in Matter of Rosas.³³ The alien in Matter of Rosas entered the United States without inspection in 1979.³⁴ In December of 1989 she adjusted her status pursuant to INA section 245A and thereafter considered “an alien lawfully admitted for permanent residence.” ³⁵ After Rosas’ conviction of illicit transportation of a controlled substance (an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C. section 1101(a)(43)(B) (1994)) on March 14, 1997, Legacy Immigration and Naturalization Service (INS) placed the alien in removal proceedings.³⁶ The BIA discussed that an alien who adjusted status to that of permanent resident under INA section 245A requires the alien to demonstrate admissibility as an immigrant; however the BIA acknowledged the adjustment of status could not be characterized as an “entry” into the United States under INA section 101(a) (13)(A).³⁷ The BIA noted that INA section 101(a)(13)(A) does not set forth the exclusive definition of the term “admitted”.³⁸

Ultimately, the Board concluded aliens “lawfully admitted for permanent residence” through the adjustment process are considered to have accomplished an “admission” to the United States under INA section 101(a)(20). ³⁹ The BIA therefore concluded the term “admission” in INA section 237(a)(2)(A)(iii) includes an adjustment of status.⁴⁰ Rosas was found removable because she was convicted of an aggravated felony after her adjustment of status from within the United States.⁴¹ Under section 101(a)(20) of the Act, the Board determined that this section encompassed both admissions as an Legal Permanent Resident (LPR) at the border and admissions to LPR status through the adjustment of status within the United States.⁴²They found their determination supported by the language of the adjustment provisions themselves: under the general provision for adjustment of status, the Attorney General is to “record the alien’s lawful admission for permanent residence”.⁴³ Other provisions for adjustment of status to permanent residence also confer upon the applicant a status “lawfully admitted”. ⁴⁴

The definition of the term “removable” added by the IIRIRA assigns INA section 237 grounds to aliens who are “admitted to the United States.” ⁴⁵ INA section 237(a) finds aliens removable who “at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible”.⁴⁶ It is from INA section 237(a)(1)(A) of the Act that the BIA found its statutory support for its holding.⁴⁷ The BIA concluded that INA section 237 recognizes that aliens who have adjusted to permanent resident status have been “admitted” to the United States.⁴⁸

Furthermore, the Board found support for their holding in the avoidance of absurd results.⁴⁹ Concluding that if the terms “admission” and “admitted” did not include adjustment of status, aliens who acquire their LPR status through adjustment of status would be inadmissible under INA section 212(a)(6)(A)(i) and in the same position as aliens who entered without inspection. ⁵⁰ While the Board found such a “drastic shift in the treatment of a significant number of permanent resident aliens” was not the intention of IIRIRA, other provisions in IIRIRA were specifically added to disincentive unlawful entries and give harsh penalties to aliens who entered without inspection.⁵¹

However, the Board’s rationale to avoid absurd results may be questionable. When considered in its entirety, IIRIRA’s shift from “entry” to “admission” most obviously affects the category of aliens who entered without inspection; therefore, Congress may have looked to impact aliens who entered without inspection who later adjusted status under INA section 245A. Congress’s intention to significantly impact aliens who entered without inspection through IIRIRA perhaps does not make this statue yield an absurd result, but rather the intended one. Most convincingly this argument highlights the fact that INA section 237(a)(2)(A)(iii) refers to convictions occurring “after admission,” and the adjustment of status process does not involve or constitute an “admission” as defined in the statute.

B. Circuit Court’s First Interpretation of “Admission” under IIRIRA

Shortly after Matter of Rosas, the federal circuit court had an opportunity to weigh in. The Ninth Circuit approach was consistent with the Board’s following their decision in Ocampo-Duran v. Ashcroft.⁵² Under a similar fact pattern as Matter of Rosas, an alien entered the United States without inspection to later adjust his status under 245A when after he adjusted status he committed an aggravated felony and was convicted.⁵³ The Ninth Circuit faced with a similar question as Matter of Rosas, whether the phrase “lawfully admitted for permanent residence,” INA section 101(a)(20), could constitute an “admission” for purposes of removal under section 237(a)(2)(A)(iii).⁵⁴ The court held an adjustment of status is an “admission” for purposes of determining removability under section 237(a)(2)(A)(iii).⁵⁵ The court found the alien removable because he was convicted of an aggravated felony after his adjustment of status.⁵⁶

Like the BIA, the Ninth Circuit found support in the canon to interpret statutes so as to avoid absurd results.⁵⁷ The Ninth Circuit refused to find the exclusive definition under all circumstances of “admission” as contained in INA section 101(a)(20) because it would have meant that aliens who entered the United States without inspection and authorization and subsequently adjusted status could not be removed under INA section 237(a)(2)(A)(iii) (because they had never been “admitted”) even though aliens who had been lawfully admitted could be removed under this section of the Act.⁵⁸

The Ninth Circuit seems to do linguistic acrobatics to avoid absurdity and embraced an alternative construction of the term “admission” because an overly narrow interpretation of the term of “admission” would have created an undesirable loophole.⁵⁹ The Ninth Circuit’s linguistic maneuvers seem to conflict with following rational Congressional intent. The IIRIRA amendment created ambiguities that perhaps neither the circuit court nor the BIA is prepared to interpret. The Ninth Circuit’s decision to adopt a broad interpretation of “after admission” to include both aliens who are “admitted” at the time of entry pursuant to section 101(a)(13)(A) and to aliens who are “lawfully admitted for permanent residence,” as defined in section 101(a)(20) is at best a guess of Congressional intent because Congress was otherwise silent when it enacted the substitution of the term “after admission” for “after entry”. Legislative history does not indicate Congress intended to render “inadmissible” the group of aliens who have adjusted status, so this lack of intent may not be the most credible support for the Ninth Circuit’s broad interpretation.⁶⁰

C. Lingering Questions of Interpretation

Following Matter of Rosas and Ocampo-Duran the “admission” interpretation question was far from settled, and arose with new questions for removal considerations under a different fact pattern in Matter of Shanu.⁶¹ The alien, Shanu, was admitted as a nonimmigrant in 1989. Shanu later adjusted his status to that of LPR in 1996.⁶² In 1997 Shanu convicted of a crime involving moral turpitude (“CIMT”).⁶³ The Board held an alien who adjusts to LPR status from within the United States has been admitted as of the date of his adjustment.⁶⁴ The BIA concluded that Congressional intended “with respect to aliens who have been admitted to the United States more than once- that each and every date of admission qualifies as a potentially “relevant” date of admission under section 237(a)(2)(A)(i)”.⁶⁵ Therefore, under this BIA holding, an alien with multiple admissions who is convicted of a CIMT committed within 5 years after the date of any admission the alien is removable.⁶⁶ Shanu was removable because he was convicted of a CIMT within 5 years of his adjustment of status.⁶⁷

Shivaraman v. Ashcroft⁶⁸ presented the Ninth Circuit the opportunity to consider the same fact pattern and issue as Matter of Shanu. The Ninth Circuit considered whether an alien’s date of adjustment of status can constitute the alien’s “date of admission” for purposes of INA section 237(a)(2)(A)(i) if the alien previously made a lawful entry into the United States and continuously maintained lawful presence.⁶⁹ However, unlike the Board’s holding in Shanu, the Ninth Circuit considered the “date of admission” for removal purposes as the date the alien first made “lawful entry” into the United States.⁷⁰

Shivaraman was admitted as a nonimmigrant in 1989 and later adjusted his status to that of LPR in 1997.⁷¹ The state of Hawaii convicted Shivaraman of theft (a CIMT) in 1998 for acts he committed between January 27, 1998 and October 10, 1998 that was punishable up to 10 years.⁷² In March 2001, INS charged Shivaraman with removability on the basis of a CIMT under INA section 237(a)(2)(A)(i).⁷³

In addition to determining that an alien’s adjustment of status is considered an admission under the relevant removal statute,⁷⁴ the Ninth Circuit then discussed which date of admission was proper for aliens, like Shivaraman, who had multiple “admissions” for purposes of removal when the alien made a lawful entry to the United States prior to his adjustment of status.⁷⁵ In this discussion the Ninth Circuit commented on BIA precedent from Matter of Rosas and Ocampo-Duran and asserted the inapplicability of Matter of Rosas and Ocampo-Duran in this case because in both of those cases the alien first entered the United States without inspection and subsequently adjusted status.⁷⁶ The Ninth Circuit found the applied BIA precedent arbitrary with “unbounded discretion with disparate effects and drastic immigration consequences”⁷⁷ While the Ninth Circuit did not find the alien’s adjustment of status to meet the literal terms of the definition of “admission” or admitted” as contained in section 101(a) (13)(A) it held that in order to avoid absurd results, adjustment of status should permit an alien to be considered “admitted” from the language contained in section 101(a)(20).⁷⁸ The Ninth Circuit held when an alien is “admitted” under INA section 101(a)(13)(A) and maintains a continuous lawful presence thereafter, “the date of admission” is the date of the alien’s lawful entry and not the date of adjustment of status.⁷⁹ The Fourth and Sixth Circuit Courts subsequent considerations of similar fact patterns and the same issues in Shirvaman yielded similar holdings in Aremu v. DHS⁸⁰ and Zhang v. Mukasey.⁸¹

The BIA had opportunity to reconsider its interpretation of “after admission” in Matter of Alyazji.⁸² It affirmed that an adjustment of status constitutes an “admission”.⁸³ It specified the language, structure and purpose of the Act, taken as a whole has led to the conclusion that the class of aliens “in and admitted to the United States consists of (1) those who entered the United states with the permission of an immigration officer after being inspected at a port of entry; and (2) those who entered the United States without permission or were paroled, but who subsequently became lawful permanent residents.”⁸⁴ Further, in an effort to settle the query about which date of admission applies when the alien has been admitted more than once, the BIA concluded that the date of admission was the date “by virtue of which the alien was present in the United States when he committed his crime.”⁸⁵ Therefore, the alien is removable if the alien was present in the United States as a result of an admission that took place within the five-year period of the date that he committed his crime.⁸⁶ However, the alien would not be deportable if he committed his crime more than five years after the current admission to the United States.⁸⁷ The BIA clarified that the five-year period does not begin anew every time the alien is admitted.⁸⁸ It considered the adjustment of status an admission it specified that the alien’s 5 year period did not restart with his adjustment of status – it merely extends the alien’s period of presence without affecting the determination of the date of admission as required by statute.⁸⁹

V. Conclusion

Congress should look to remedy its gap in its definition of “admission”, especially as it applies to grounds of deportability. By now Congress should recognize that its definition of “admission” in section 101(a)(13)(A) cannot be universally applied throughout the INA. Without Congress adding language to indicate a permissive contextual application, it begs the question whether the term “admitted” has the same meaning in INA section 101(a)(20) that it has in INA section 101(a)(13)(A).

————————————————————————————————————————-

^{i Immigration Nationality Act (“INA” or “Act”) (McCarran Act) (McCarran-Walter Act), 8 U.S.C. §§ 1101-1537 (2006).}

^{ii Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) Pub. L. No. 104-208, 110 Stat. 3009-546.}

^{iii 8 U.S.C. § 1101(a)(13)(2006)}

^{iv Pub. L. No. 82-414, 66 Stat. 163 (1952) (Pre-IIRIRA, the term “entry” in former INA section 101(a)(13) meant “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise…”)}

^{v 8 U.S.C. § 1101(a)(13) (2006).}

^{vi Pub. L. No. 104-208, 110 Stat. 3009-546.}

^{vii 8 U.S.C. § 1229 (2006).}

^{viii Pub. L. No. 82-414, 66 Stat. 163 (1952).}

^{ix 8 U.S.C. § 1182 (2006).}

^{x Id.}

^{xi Aliens who are inadmissible under INA section 212(a) are “ineligible to receive visas and ineligible to be admitted to the United States.” Id.}

^{xii 8 U.S.C. § 1227 (2006).}

^{xiii 8 U.S.C. § 1101(a)(13) (2006).}

^{xiv Id.}

^{xv Pub. L. No. 82-414, 66 Stat. 163 (1952).}

^{xvi Some of the inadmissibility grounds under the INA maintained the language of “entry” under IIRAIRA: INA section 212(a)(3)(C)(I) and 212(a)(5)(A)(I). Removal grounds that use the term “entry”: INA § 237(a)(1)(A) “inadmissibility at entry” and “smuggling aliens within five years of entry”.}

^{xvii 8 U.S.C. § 1101(a)(13)(2006).}

^{xviii 8 U.S.C. §§ 1227, 1182.}

^{xix 8 U.S.C. § 1182 (2006).}

^{xx 8 U.S.C. § 1101(a)(13) (2006).}

^{xxi 8 U.S.C. § 1227(a) (2006).}

^{xxii Id.}

^{xxiii House Report No. 104-469 (1) at 158-59 (1996).}

^{xxiv 8 U.S.C. § 1101(a)(13) (2006) defines the term “lawfully admitted for permanent residence” means the “status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”}

^{xxv Id.}

^{xxvi 8 U.S.C. § 1101(a)(13) (2006).}

^{xxvii 8 U.S.C. § 1227 (2006) which (in pertinent part) authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years … after the date of admission,” provided the crime is punishable by a sentence of imprisonment of 1 year or longer and section 237(a)(2)(A)(iii) of the Act provides “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Similar confusion occurs in section 212(a)(9)(B)(i)(II) of the Act “[A]liens who are inadmissible … are ineligible to receive visas and ineligible to be admitted to the United States.”}

^{xxviii Pub. L. No. 82-414, 66 Stat. 163 (1952).}

^{xxix 8 U.S.C. § 1227 (2006) (Aliens who entered without inspection are classified as inadmissible, shall be removable, and are not entitled to the benefit of cancellation of removal unless they qualify for the narrow exceptions permitted by 240(b) of the Act).}

^{xxx 14 I. & N. Dec. 467, 468 (BIA 1973).}

^{xxxi Id.}

^{xxxii 8 U.S.C §§ 1229, 1255 (2006).}

^{xxxiii Matter of Rosas, 22 I. & N. Dec. 616 (BIA 1999).}

^{xxxiv Id. at 616.}

^{xxxv Id; 8 U.S.C. § 1255(a) (1988).}

^{xxxvi Matter of Rosas, 22 I.& N. Dec. at 616-17.}

^{xxxvii Id. at 623.}

^{xxxviii Id.}

^{xxxix Id. at 618.}

^{xl Id. at 623.}

^{xli Id.}

^{xlii Id.}

^{xliii Id. at 619; 8 U.S.C. § 1255 (2006).}

^{xliv Id.; “an alien lawfully admitted for permanent residence” See INA sections 209(b) (refugees), 210(a)(2) (special agricultural workers), 244(a) of the Act (suspension of deportation), 8 U.S.C. §§ 1159(b), 1160(a)(2), 1254(a) (2006).}

^{xlv 8 U.S.C. § 1227(a) (2006).}

^{xlvi Id.}

^{xlvii Matter of Rosas, 22 I.& N. Dec at 619.}

^{xlviii Id.}

^{xlix Id. at 621.}

^{l Id.}

^{li Id.}

^{lii Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001).}

^{liii Id. at 1134.}

^{liv Id.}

^{lv Id.}

^{lvi Id. at 1135.}

^{lvii Id.}

^{lviii Id.}

^{lix Id.}

^{lx Matter of Rosas, 22 I.& N. Dec at 619 n.4}

^{lxi Matter of Shanu, 23 I&N Dec. 754 (BIA 2005)}

^{lxii Id. at 754}

^{lxiii Id. at 755}

^{lxiv Id. at 759}

^{lxv Id. at 759.}

^{lxvi Id.}

^{lxvii Id. at 764.}

^{lxviii Shirvaman v. Ashcroft, 360 F. 3d 1142 (9th Cir. 2004).}

^{lxix Id. at 1143.}

^{lxx Id.}

^{lxxi Id.}

^{lxxii Id.}

^{lxxiii Id.}

^{lxxiv The INA provides that an alien is removable if he is convicted of a CIMT for which a sentence of one year or longer may be imposed, that is committed “within five years… after the date of [his] admission.” Section 237(a)(2)(A)(i). 8 U.S.C. § 1227(a) (2006).}

^{lxxv 360 F. 3d at 1146-47.}

^{lxxvi Id.}

^{lxxvii Id. at 1147.}

^{lxxviii Id. at 1147-48.}

^{lxxix Id. at 1149.}

^{lxxx 450 F.3d 578 (4th Cir. 2006) (held the date on which an alien, who was previously admitted as a nonimmigrant adjusts his status to that of a lawful permanent resident is not the “date of admission” for removal purposes).}

^{lxxxi 509 F. 3d 313 (6th Cir. 2007) (held an alien’s physical, legal entry into the U.S. was his nonimmigrant admission for purposes of removal under INA section 237(a)(2)(A)(i)).}

^{lxxxii 25 I & N Dec. 397 (BIA 2011).}

^{lxxxiii Id.}

^{lxxxiv Id. at 399.}

^{lxxxv Id. at 406.}

^{lxxxvi Id. at 406.}

^{lxxxvii Id.}

^{lxxxviii Id. at 406-7.}

^{lxxxix Id. 407.}

Illegal Immigration and Education

The National Law Review is pleased to announce the winner of the Fall 2012 Law Student Legal Writing Contest, Lloydann A. Wade from the Barry University Dwayne O. Andreas School of Law whose article, Illegal Immigration and Education, was featured in The National Law Review:

Dwayne O. Andreas School of Law

Introduction

This paper will examine the topic of immigration and the reciprocal effects that it has on the social and educational system here in the United States. It will also examine the changing climate of illegal immigration while examining the stories of immigrants, who after being brought here at a young age were able to overcome nearly insurmountable obstacles to obtaining graduate degrees, all while attempting to legalize themselves. Finally this paper will look at a potential solution to the problem of the illegal children who have for all intents and purposes become Americans, but lack residency status.

Primary Education and Illegal Children

With election season being but a few weeks away, many topics have come to the forefront of American politics, one of the foremost of these being immigration and the other, which goes hand in hand with immigration, being education. The two, inextricably linked subjects have come to the forefront of peoples’ minds, with the steadily increasing number of college enrollments and the rising cost of education, these topics have become some of the pillars of the governmental candidates’ platforms. If the path illegal immigrants take in education is examined it is evident that the immigration system does a great injustice to illegal immigrants by not enforcing stricter guidelines with regards to correcting their resident status by the time they reach the age of majority. Though some may argue that their educational benefits should not be equal to that of legal citizens, if the sheer number of immigrant children who graduate high school and go on to seek either vocational or traditional tertiary educations are examined, it can be shown that there are a great number of both economic and social benefits to encouraging illegal immigrants to attempt to gain legal statuses’ as they reach educational milestones.

A large number of illegal immigrants enter the United States each year. According to the Department of Homeland Security the number of immigrants has remained steady, hovering around 1 million per year for the last 5 years, down from a high of approximately 1.8 million in 1991, and up from a low of approximately 645k in 1999.^[i] Attorney Gerry Katzerman states “[w]e hear from them a very similar experience, where they attempt to enroll and are asked about their immigration status, are asked for documents they don’t have, and they basically disappear back into the population without having the opportunity to participate in public education…”^[ii] By making the path to legalization, and thus education, more burdensome the government is thereby forcing illegal immigrants to burden the government in other ways. According to the Center for Immigration Studies “In 2009 (based on data collected in 2010), 57 percent of households headed by an immigrant (legal and illegal) with children (under 18) used at least one welfare program, compared to 39 percent for native households with children.”^[iii] By blocking illegal immigrants’ paths to education for their children, two generations instead of just one then become dependent on society by increasing the poverty rate and thus placing themselves in the underclass. While immigrants’ use of welfare tends to be higher than those of their native counterparts^[iv] “[a] large share of the welfare used by immigrant households with children is received on behalf of their U.S.-born children, who are American citizens. But even households with children comprised entirely of immigrants (no U.S.-born children) still had a welfare use rate of 56 percent in 2009.”^[v]  A lack of residency and education on the part of immigrants’ forces them into the same public assistance programs that opponent’s fear they will abuse. Thus the very effect that opponents of any kind of immigration reform attempt to avoid becomes the very result that is accomplished.

The number of gang members rose from 750k to 1 million in 2009, with 40% of them being under the age of 18, 47% of them being Hispanic, 31% of them being black with the number of gang related arrests nearly doubling between 2001 to 2009.^[vi]When a child enters the United States legally or illegally they are legally entitled to an education,^[vii] as the courts have stated “denying public education [to children] could impose a lifetime of hardship ‘on a discrete class of children not accountable for their disabling status.’”^[viii] This education, which by most standards is the equivalent to that of the children’s home country begins with the issuance of an Individual Taxpayer Identification Number (ITIN) when they register for school.^[ix]Though children are given the equivalent to a social security number and made to appear as though they are legal, they are for all intents and purposes not considered part of society and there is nothing secure in knowing that their immigration status is so tenuous.

According to the Juvenile Justice Bulletin published by the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention “Street gangs are an amalgam of racism, of urban underclass poverty, of minority and youth culture, of fatalism in the face of rampant deprivation, of political insensitivity, and the gross ignorance of inner-city (and inner-town) America on the part of most of us who don’t have to survive there.”^[x] By ignoring the problem of legalizing children of illegal immigrants, not only are governments contributing to the increasing poverty in urban and sub-urban areas, but they are also causing a chain reaction of increased gang-memberships and increasing the poverty rates of immigrants. The sense of hopelessness and lack of opportunity among immigrants becomes localized in larger cities and sustains itself through a perpetual cycle of poverty, crime and violence.

Though this situation may seem dire and doomed to repetition, there are exceptions; take for instance the story of Adriana Sanchez, who was brought from Mexico to the U.S. at the age of 12 by her parents, who were farm workers, who had overstayed their visas. Sanchez just graduated in May with a Masters Degree in International Relations from California State University.^[xi] Sanchez’s story is not unique as there are hundreds of thousands, if not more illegal immigrants who somehow find a way to pay for college (because they are not eligible for loans) despite their status. “There’s a pool of talented young people who in their hearts believe they’re American, because they’re raised and educated here, speak fluent English and have a level of education that equals or surpasses that of average Americans,” Roberto Gonzales, professor of sociology.^[xii] This untapped talent pool should not have to cower in the shadows, for fear of being deported, they may well be able to fill the gaps in employment for social workers, scientists, medical professionals and in the Information Technology field. Creating a barrier between educated illegal immigrants and legitimate employment, in essence forces them to either become part of the underclass or dependent on government assistance programs like welfare, WIC and Social Security. For every one illegal immigrant who graduates there are potentially hundreds of others who are able to accomplish the same, but who because of their illegal status, never come forward with their stories.

Immigration Statutes

In an unsuccessful attempt to streamline the immigration process for illegal immigrants, several measures have been proposed to encourage their legalization, including most recently the Development, Relief, and Education for Alien Minors Act (DREAM Act).^[xiii]The DREAM Act, though it never passed, was proposed to offer a path to legal residency for the children of illegal immigrants who came to the United States as minors. In order to qualify as “conditional nonimmigrant” under the DREAM Act a child must have graduated high school while being a resident of their state in addition to the requisite 2-year waiting period. In addition they would need to meet the age restrictions, showing that they are of “good moral character” by having not committed any felonies and having a maximum of three misdemeanors and undergoing a medical examination. In order to have had the DREAM Act pass the framers need to tailor the act in a way to appease the conservative voters, who viewed it as encouraging illegal immigration and placing undue financial and social burdens on society. The framers of the Act should have placed a caveat which stated that it would only apply to residents who were already in the country; or that the Act would only be valid for a limited period, to examine its overall effect on the educational and financial system.

One of the most recent versions of the DREAM Act placed a ban on in-state tuition for illegal immigrants and even though the DREAM Act may not have been ratified, many states have laws that deny illegal immigrants the right to receive in-state tuition, no matter how long they have lived in the country. Students have filed suit under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)^[xiv] to be able to pay in-state tuition rates for their college education claiming that it violates the Equal Protection Clause of the 14^th Amendment. The basic premise of IIRIRA was to ensure that illegal immigrants take responsibility for their unlawful migration into the United States by stating that they have to be deported and remain outside of the country before they can attempt to reenter the country legally. The act states “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”^[xv]The act has the discriminatory effect of denying, what would, if but for their legal status, be citizens of their respective states the right to an education, or making it so cost prohibitive that they would not be able to attend. Again, adding to the number of people who would be dependent on government programs and increasing the incidence of violence in high immigration areas.

In an attempt to ensure that illegal immigrants do not benefit from social programs intended for American citizens, the federal government also enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996. This act states:

“An alien who is not a qualified alien is not eligible for any Federal public benefit [including] any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States” (8 U.S.C. §1611).^[xvi]

Though the true intentions of the act are unequivocal, it can be stated with absolute certainty that it does not work. There are ways in which illegal immigrants are able to benefit from social programs, for example, since the children of illegal immigrants are eligible to receive an education, they may also qualify for reduced or free lunches from schools. Illegal immigrants also give birth to what are called “anchor babies,”^[xvii] which are children born in the United States to parents who are illegal. So in the end, not only do illegal immigrants obtain healthcare for their children, but they also receive free meals and other social services. The United States government, both state and federal, enact laws, but because of our own system of checks and balances, circumvent those laws, through federal court rulings and state statutes. Again, this emphasizes the problem of illegal immigrants not only benefiting from programs designed for Americans, through education, but it also shows that however carefully worded statutes are they do not work. Illegal immigration is something that has become a fact of life and immigration reform is needed to deal with this problem effectively.

If programs such as the DREAM Act are not passed, then the government needs to find other means to make it easier for children who are brought into the United States at a young age to become legal residents. Ignoring the problem of immigration and letting illegal immigrants wallow in poverty affects the quality of life of everyone, not just the working class and the poor. If the parents of children bring them into the United States, to be indoctrinated into a culture that is foreign even to the parents themselves, and remain, in some cases for decades, with the full knowledge of the government, then how can the children be blamed for their inability to obtain legal residency. If the government has taken pains to make sure that all illegal immigrants are entitled to an education, then steps should be taken so that these children can legitimize themselves at the point when they begin this education.

Immigration And Legal Education

Two cases at the forefront of the immigration and education debate are that of 26-year-old Jose Manuel Godinez-Samperio and 35-year-old Sergio Garcia. These two gentlemen are pristine examples of why the educational and immigration systems both need to be reformed, both jointly and severally. Samperio is a law student from Florida who successfully took and passed the Florida bar, but because of his illegal status is unable to practice law, right now the Florida Supreme court has to decide if Sampiero, who is on a two year work visa and protected from deportation, should be allowed to practice. On the other hand Garcia’s case is being spearheaded by the California State Bar, where they argued that his illegal status should not bar him from practicing law, despite the fact that he has taken and passed both the character and fitness and the written bar examination. Mr. Garcia’s case was turned down and the court refused to allow him to practice.

In the case of Jose Manuel Godinez-Samperio, he came to America as an illegal immigrant, he was brought here by his parents as a young child and was able to graduate as valedictorian of his high school class, attend Florida State University Law School and even after disclosing his residency status the Florida Bar Examination Board still granted him a waiver of proof of citizenship so that he could take the bar.^[xviii] What would it serve to allow an illegal alien to take the bar exam knowing that he would be unable to practice law in the state, or any other state in the United States for that matter? While it could be argued that Samperio’s case is unique, it appears that more often than not it is the norm. Children of illegal immigrants are able to obtain professional degrees and in essence do become productive members of society, they just lack the title of legitimacy because of their illegal status. Is the American dream, if accomplished by an illegal immigrant still American? Are people like Samperio not the prime examples of who the DREAM Act was created to help, someone who would, through their own efforts accomplish something that some native born Americans are unable to do. In an attempt to circumvent their illegality some immigrants, who have obtained secondary and tertiary degrees hire themselves out as independent contractors, so they do not have to answer with regards to their residency status, while being employed. It is at this point that the government should question the measures they have in place to stem the flow of illegal immigration, if an illegal immigrant is able to obtain a masters degree, juris doctor or a doctoral degree then what would be the point of denying them the ability to use those degrees in what is essentially their own country to make legitimate income.

In an attempt to use their degrees without facing the scrutiny they would normally encounter, many immigrants have sought and successfully obtained H-1B visas, which in essence allows them to work and live in the United States.^[xix]Illegal immigrants are already in the country and are doing very well for themselves without government intervention, in terms of education, if the government were to intervene statistics would shift in their favor, the number of people on governmental assistance would decrease, crime would decrease and revenue would increase.

An example of immigration and education from a different perspective is the case of Cesar Vargas, a graduate student from the CUNY School of Law, he took and passed the bar exam, and again was unable to practice because of his residency status, he entered the country when he was five years old.^[xx] A five year old who enters the country with his illegal parents, is educated by the Department of Education for over 15 years, makes friends, associates and forms an identity as an American and establishes himself in academia, defying the stereotypes and statistics that state he is doomed to failure and he is rewarded by the benefit of being gainfully employed, knowing for over 15 years that he was in the country illegally. This willful blindness on the part of the government shows that they first turn a blind eye to immigrant children who come into the country and obtain an education, then blame the children for their status and refuse to acknowledge that education. In some cases these children are unable to identify with their parent country because of the time that has elapsed during their absence. Children are left in an educational limbo, they are so socially and culturally indoctrinated into American culture that they are in some cases ignorant to their own ethnic culture that deportation may no longer be an option. Having now risen from the working poor to now working or middle class, through education, they are unable to identify with the people in their American communities. Becoming educated brings with it a sense of disconnect between an illegal immigrant and their home community, not only because of their elevated intellectual status, but also because of unconscious resentment of their illegality.

Finally there is the ironic case of Sergio Garcia, a 35-year-old California resident who successfully completed all of the requirements necessary to become a California attorney, but because of his illegal status he is unable to practice law. Garcia is poised to become a defender of the same constitution that denies him the rights afforded legal residents. Though Garcia applied for residency in the mid-1990’s there is no real time frame when he can expect to receive final approval. Though Garcia has many supporters, including the California State Assembly and California Attorney General, Kamala Harris, his approval to the California Bar would create a wealth of problems for other illegal immigrants who have also successfully fulfilled their state bar requirements, as immigration, being a federal issue, is something separate and distinct from the State. The state bar falls under the jurisdiction of the state, and if someone is in the country illegally then the state has to defer to federal authority with regards to their legality or lack thereof.^[xxi]

One would think that if this many students are able to pay their way through graduate school that they should be rewarded with legitimacy, but it appears that this is not the case. Though immigrants should not be rewarded for entering the country illegally, their children should not be punished for the acts of their fathers.

A Forgotten Class

There is still yet another group of immigrants who are to be addressed, those who leave their countries with professional degrees and licenses, and because of their legal status are relegated to working minimum wage and factory jobs. In the case of Sampiero’s parents, they were professionals in Mexico, but decided to stay after their tourist visas ran out and were only able to work as farm and factory laborers. The government should as a matter of self-preservation, look into ways by which illegal immigrants with tertiary degrees and professional licenses could be streamlined into the working force or to obtain the same or similar licenses here in the United States. Again, there is an untapped source of both revenue and labor that the government can readily access, but for the fact of their legitimacy. With adequate safeguards in place, the government could encourage illegal immigrants with tertiary degrees in any field to go to continuing education classes and obtain licenses here in the United States. If the government were to encourage this, they would be able to generate revenue through school tuition and then later when immigrants open their own businesses or enter into the workforce. There is no effective way in place to stem the flow of illegal immigrants into the country; the government should thus attempt to placate both proponents and opponents of immigration reform by structuring the immigration laws in a way that benefits society, the economy and the immigrants themselves. What better way to encourage immigrants to become more independent, rather than dependent on the American governmental system, than to make the government work for them while making them work for the government? In the years from 1990 to 2010, the number of immigrants who were small business owners has doubled from 9% to 18%,^[xxii]though the rate of immigration has remained the same this means that more immigrants are taking the initiative to become their own bosses. This number could increase exponentially if immigrants were given the ability to utilize knowledge from their own countries and their own independent spirits to create employment for themselves and members of their communities.

By deporting college educated students and their parents, the United States is exporting a very important resource, some of its educated population. If the United States were to deport just the immigrants who registered for school or who were within its grasp, it would keep the uneducated and dependent immigrants, both legal and illegal, and therefore create a crisis of epic proportions with regards to its social programs. In the case of 20-year-old Nadia Habib, a Stony Brook University student who is being faced with deportation after being brought here by her mother as a child, this is a very real threat. Habib and her mother were recently thrust into the spotlight when she was being faced with deportation after the Immigration and Customs Enforcement (ICE) denied her mother’s request for political asylum bid.^[xxiii]In this case, a reorganization of the immigration system in place would have prevented something like this from happening. Had the DREAM Act or some similar form of legislation been in place, Habib would not have been able to become lost in the system for such an extended period of time. If the need for immigration reform wasn’t clear then the case of Kairi Shepherd should make it so. Shepherd was adopted by an American woman and left India when she was 3 months old. After a conviction for check fraud at the age of 17, the government initiated her deportation proceedings. Shepherd’s adoptive mother failed to file an application for residency/citizenship before her death and now Kairi is faced with deportation back to India, but the orphanage where she was adopted from was shut down and now she is in deportation limbo.^[xxiv] Though Kari came to America legally, now she is being faced with deportation to a country where she does not speak the language and cannot identify with the culture, because for all intents and purposes she is now considered illegal. Would it be fair to someone like Shepherd, who has literally spent their entire live in the United States to be deported to a country that she cannot identify with its people outside of her physical resemblance to them. Not every immigrant, legal or not, who is deported would be able to survive in the country of their birth, either because of language barriers or poor health conditions or a myriad of other reasons.

A Possible Solution?

A plausible amendment for both sides to consider under the DREAM Act or some similar legislation, would be that United States Citizenship and Immigration Services (USCIS) should provide information to illegal immigrants about legitimizing their children’s status, rather than leaving their children to float in immigration uncertainty and dodging the perpetual bullet of having themselves and their parents deported. The USCIS should propose a compromise between proponents of DREAM Act and its opponents by making sure that every immigrant that signs up for a ITIN number for their children are set on a course so that when their child graduates high school they would be able to apply for or should have already applied for legal resident status. This would eliminate the fear that the children of immigrants would become a burden on society and at the same time ease any fears that illegal parents may have in regards to their children being denied the opportunity to legalize themselves. This path will not be free, as parents of these children should have benchmarks in which they should pay for any paperwork or necessary administrative costs incurred. By encouraging a fee from those who wish to register their children it would be a self-sustaining program that would encourage parents to register their children for school, thus lowering the illiteracy and poverty rates among immigrants in general, while boosting the economy through a new source of revenue. This would also have the added bonus of lowering the crime rate, because parents who know that their children would be able to sponsor them when they become legal residents would encourage their children to finish secondary school and obtain gainful employment, while continuing to be law abiding residents. This may not be an ideal solution, but it would help to streamline the immigration process for millions of illegal children, who have developed identities as Americans without the benefits of citizenship. It would also appease the conservative sense of illegal immigrants taking advantage of the system, while also keeping track of illegal immigrants in the country; on the other side of the argument this compromise would bring a sense of organization and justice to the children of immigrants, while refraining from overt discrimination to their parents.

In an attempt to stem the flow of immigrants, the United States could take an approach similar to that of many European countries. By making bilateral agreements that would weed out false claims of asylum, Italy was able, through a deal with Libya, to reduce the flow of illegal immigrants arriving on its shores from tens of thousands to hundreds.^[xxv] There is evidently no way a country can completely cut off illegal immigrants without some sort of backlash. In an attempt to stem the flow of illegal immigrants, the European Union Parliament passed guidelines which stated that illegal immigrants could be held for up to 18 months before deportation, and in response Hugo Chavez claimed that he would cut off oil supplies to their countries.^[xxvi] European countries that have attempted to block illegal immigration have faced staunch protests and criticisms from immigration rights advocates in their countries, even when those immigrants cause crimes or contribute to the violence in society.^[xxvii] Since blocking illegal immigration would cause obstacles amongst large numbers of the United States population, as evidenced by what has occurred in Europe, it is up to the United States to take a progressive stance towards immigration and their educational policies. As long as the children of immigrants are law-abiding citizens, then the US should not place undue burdens in their paths to acquiring citizenship or education.

Conclusion

Immigrants made the United States, when it was just called the West Indies. This country was built upon the backs of immigrants. In furtherance of making this country great, there must be an unqualified acceptance that there is no real way to stem the flow of immigrants who come to America. What can be done is to approve legislation that would reward the children of illegal immigrants who accomplish, what many native Americans are unable to do, become productive members of society, who through their own legitimate had work and struggle are able contribute to the academic, social and financial growth of this country. Immigration laws as they currently stand, contradict themselves through judicial rulings and therefore are effectively ineffective. If the country were to take a more affirmative, progressive stance with regards to illegal immigration, it could effectively make the problem take care of itself, or at least ease the burden it places on the people that currently live here in the United States.

_{[i] http://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2011/ois_yb_2011.pdf}

_{[ii] Christine ArmarioIllegal Students Entitled To K-12 Education, Dept. of Education Reminds Schools, Associated Press, May 6,2011.}

_{http://www.huffingtonpost.com/2011/05/09/illegal-students-education_n_859710.html}

_{[iii] http://cis.org/node/3876#public}

_[iv] Id.

_[v] Id.

_[vi]_{http://www.fbi.gov/about-us/ten-years-after-the-fbi-since-9-11/just-the-facts-1/violent-gang-initiatives}

_{[vii] Plyer v. Doe, 457 U.S. 202 (1982)}

_{[viii] Supra note ii}

_{[ix] http://www.irs.gov/taxtopics/tc857.html}

_{[x] https://www.ncjrs.gov/pdffiles1/ojjdp/182210.pdf}

_{[xi] Gosia Wozniacks, Illegal Immigrants Find Paths to College, Careers, Associated Press, May 26 2012.}