Justice delayed

For cancellation, age of qualifying children fixed at time of IJ's decision

Jose and Luz

Jose Torres [names are aliases] was born in Guatemala. He entered the United States in 1994. He fell in love, married, and raised three U.S. citizen children. His youngest child is a girl named Luz.

In 2019, Mr. Torres was detained by immigration officials and placed in deportation proceedings. His defense was “cancellation of removal”. He argued that he had been in the country for more than ten years; that he was a person of “good moral character” who had never been convicted of a serious crime; and that his deportation would cause “exceptional and extremely unusual hardship” to his daughter Luz.

The immigration judge (IJ) agreed, and granted him cancellation of removal. This status allows him to remain in the country, care for his daughter, and, eventually, apply for a green card and become a permanent resident or a U.S. citizen.

The record doesn’t tell us why Luz had an “extremely unusual” need for her father’s presence. She was 17 years old at the time the IJ issued his decision. We can speculate that Luz is severely handicapped in some way that requires her father’s care. The standard is exceptionally hard to meet, so we can be certain that Luz’s need for her father was unusually extreme.

The BIA

The government appealed.

This is somewhat like appealing a “not guilty” verdict in a criminal proceeding. It’s a nasty move (to use an adjective currently in vogue) and hints at an animus against Mr. Torres, or perhaps the IJ who ruled in his favor.

But things got nastier.

For the purposes of “cancellation of removal”, your child must be a U.S. citizen who is under 21 years old. You can probably guess where this is going.

The BIA ignored the appeal for five years. When it finally looked at the case, it “noticed” that Luz, who had been 17 at the time of the IJ’s decision, had turned 21. She was no longer a “qualifying relative” for the purposes of cancellation of removal. Without looking at the merits, the BIA “concluded that Mr. Torres was no longer eligible for cancellation and ordered him removed to Guatemala.”

The Sixth Circuit

Mr. Torres appealed to the Sixth Circuit.

This case presents a pure question of law: at what point in the cancellation of removal process should courts ascertain the age of a qualifying child? Is it when the administrative record closes, when the IJ renders its decision, or when the BIA decides the case on appeal?

The BIA naturally preferred the latter.

(Legal geeks will note that until recently, under Chevron, the Court would have deferred to the BIA’s interpretation. But under Loper Bright, the Court is required to review the law de novo and make up its own mind.)

The legal analysis is technical and tortuous. I’ll give it a miss; follow the link at the end if you’re interested. The result (with one dissent) is gratifying:

We conclude that the proper moment to ascertain the age of a qualifying child on an application for cancellation of removal is at the time the IJ renders its decision.

Since Luz was 17 when the IJ ruled, Mr. Torres remains eligible for protection from deportation.

Justice delayed

It’s a familiar maxim that “justice delayed is justice denied”. It’s hard to imagine a nicer example than what the BIA tried to do to Mr. Torres.

An obvious subtext to this case is the question of malice — that is, whether the BIA intentionally delayed a decision until they could declare it moot. The Sixth Circuit politely evaded the issue:

Both parties also raised the issue of whether an "undue or unfair delay" exception exists to excuse petitioners seeking cancellation of removal whose children "age out" during the pendency of an appeal challenging a grant of cancellation. Because we now reverse the BIA's interpretation and find that the age of Torres's qualifying child was properly ascertained at the time of the IJ's decision, we decline to reach the question concerning the existence of an undue or unfair delay exception.

So, officially, we don’t know whether the delay was undue, unfair, or undertaken with the intention of sabotaging Mr. Torres’s petition. As far as we know, the BIA worked as expeditiously as possible, and was genuinely distraught when it found that its delays had caused problems for a deserving migrant.

But … come on.

The Attorney General appoints the members of the BIA. Although they have the honorific “judge”, the Attorney General can fire them if they don’t rule the way she wants. They’re no more independent than, say, the Board of the Center formerly known as “Kennedy”. The BIA kept Mr. Torres and Luz in limbo for five years, until it became possible to deny his petition without looking at it. Suggesting that the “judges” acted with malice might be disrespectful, but it’s also probably true.

In any event, malice or not, the option of delaying until a case becomes moot creates a perverse incentive. The BIA could evade judicial review by simply delaying cases it wants to deny, and expediting the handful of cases involving White South Africans it views favorably.

Fortunately that option is now foreclosed. Advocates can thank the Sixth Circuit for removing this weapon from the administration’s deportation arsenal.

And Luz, who has proven that she has an extraordinary and exceptionally unusual need for her dad, can thank the Court for not separating them.

Statement from Shanta Driver

This case was argued by Shanta Driver of the United for Equality and Affirmative Action Legal Defense Fund (UEAALDF). She provided the following statement.

We welcome this decision as a defeat for Trump and his Attorney General of their campaign to strip the courts of any independence - to reshape the American justice system into an authoritarian appendage of Trump’s fascist and racist policies.

Particularly in the realm of immigration law, Trump seeks to remove all protections against racist anti-immigrant attacks by the government. The mass resistance against ICE and the National Guard in Los Angeles, Chicago and cities across the country forms the social background of this positive decision.

The Trump administration wants its BIA to be able to delay every case in order to deny every immigrant who deserves cancellation of removal from getting it, and ignore the clear letter and intent of Congress.

This decision is correct because the Immigration Judge presides over the trial and is the person charged with giving this discretionary relief. The legal issue is whether the Trump administration can arbitrarily deport people based on a technicality of its own making. While this ruling flies in the face of Trump’s fascistization of the courts, it does not settle the overall question of needing to defeat a fascist Supreme Court that upholds all but a tiny minority of Trump’s racist and anti-democratic attacks.

We as [Mr. Torres’s] attorneys are committed to continuing not only the legal fight, but to building the movement that can defeat Trump and his fascist attacks.

Shanta Driver
National Chair of BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary)
United for Equality and Affirmative Action Legal Defense Fund (UEAALDF)

What happens to a dream deferred?

Does it dry up
like a raisin in the sun?
Or fester like a sore—
And then run?
Does it stink like rotten meat?
Or crust and sugar over—
like a syrupy sweet?

Maybe it just sags
like a heavy load.

Or does it explode?

https://scholar.google.com/scholar_case?case=7691669278979074443