Guest post by Edward L. Carter, Associate Professor of Communications at Brigham Young University Department of Communications and Counsel at Keen Law Offices, LLC, Utah. This post provides concrete details of the effects of the ‘crimmigration’ turn, discussed in César Cuauhtémoc García Hernández's post, Creating Crimmigration

International borders are physical barriers, but the law can make them into even bigger, abstract obstacles to freedom of movement and access to due process. For more than a half-century in the United States, a government regulation has restricted immigrants outside the country from seeking re-examination of their deportation orders. In this post, I describe how litigation is changing this situation.

As a lawyer, I recently represented a client who knocked down the abstract U.S. border against re-examination of deportation orders. Jesus Contreras-Bocanegra had to spend three years as a deportee in Mexico, a country he hadn't lived for decades, and I had to argue his case twice in the U.S. Court of Appeals in Denver, Colorado. That court ultimately opened the notional border for potentially hundreds if not thousands of immigrants with ties to a large geographic area of the western United States. Before I relate how that happened, a little background is necessary in order to help understand how U.S. law came to make the border impassable in an intangible but very real way.

The United States Congress has broad authority over immigration matters, but Congress has delegated much of the carrying out of immigration law to the U.S. Department of Justice. The Justice Department has established Immigration Courts and the Board of Immigration Appeals that are administrative or bureaucratic in nature but function somewhat like constitutional courts. In the 1940s, the Attorney General authorized the Board of Immigration Appeals to reopen immigration proceedings at its discretion. Reopening might be appropriate for an immigrant who was ordered deported but then produces new evidence of eligibility for relief, for example. But in 1952, by regulation, the Attorney General cut off access to reopening procedure for immigrants who already had been deported. This meant that deported individuals who were otherwise entitled to relief, and perhaps eligible to return to the United States legally, could not get access to the legal process they needed to vindicate their rights.

In 1996, Congress overhauled U.S. immigration law and generally heightened evidentiary standards for immigrants attempting to prove eligibility for relief from deportation. As a protection against wrongful deportation, Congress passed a law mandating that every immigrant had a right to file at least one motion to reopen immigration proceedings within 90 days of an appeal denial by the Board of Immigration Appeals.

Thus, since 1996, the regulation adopted by the Department of Justice (8 C.F.R. § 1003.2(d), known as the “post-departure bar”) stood in conflict with the law passed by Congress (8 U.S.C. § 1229a(c)(7), mandating a right to one motion to reopen). Notwithstanding Congress’ stated wish that immigrants be allowed to move once to reopen their cases, the Department of Justice consistently refused to hear reopening motions from immigrants who had already been deported by the Department of Homeland Security.

Immigration Court, Salt Lake City, Utah (Photo: Megan Carter)
Then along came Jesus Contreras-Bocanegra, an unlikely candidate for a precedent-setting legal pioneer. Mr. Contreras-Bocanegra was born in Mexico in 1960, but by the age of 21 he was working at a mink farm in Lehi, Utah. He was married, started a family and gained lawful permanent residency, including authorization to live and work legally in the U.S., in 1989, but he never went through the additional steps to become a U.S. citizen. In 1991 he was given a suspended jail sentence in a Utah state court for attempted possession of a controlled substance. It was a misdemeanor offense for which he never spent time in jail. However, when he took a vacation to Mexico in 2004 and tried to return home to Utah, border patrol officers discovered in a computer database that he had been convicted of the minor drug offense and ruled him inadmissible.

Immediately after his border stop in 2004, Mr. Contreras-Bocanegra was allowed to enter the United States pending the outcome of removal proceedings in the Immigration Court. It took five years, but eventually an Immigration Judge and the Board of Immigration Appeals both ordered him deported. He was actually eligible for a waiver but two successive attorneys failed to pursue that relief for him. Just a couple of days after the Board of Immigration Appeals’ decision in 2009, he was detained by the Department of Homeland Security and flown against his wishes to Mexico. He remained there until 2012 while my colleague, J. Christopher Keen, and I litigated his appeal.

The time for Mr. Contreras-Bocanegra’s appeal had not yet expired when he was forcibly removed from the country. From Mexico, he communicated with us and we filed a motion to reopen his case with the Board of Immigration Appeals. Although the law adopted by Congress in 1996 guaranteed him access to an appeal, the Board denied his motion, claiming that it lacked jurisdiction over him since he was outside the United States. In this decision-making, the Board conveniently overlooked the actions of the U.S. government. Indeed, it seems that the post-departure bar provides an incentive for federal agents to hurriedly deport people because then their appeals would not have to be heard.

On behalf of Mr. Contreras-Bocanegra, we filed an appeal of the Board’s denial in the U.S. Court of Appeals for the Tenth Circuit. The U.S. Court of Appeals is the intermediate appellate court in the federal judiciary, one step below the U.S. Supreme Court. I traveled to Denver to argue on Mr. Contreras-Bocanegra’s behalf in 2010. Although the three judges on the appellate panel seemed sympathetic to Mr. Contreras-Bocanegra’s plight, they ultimately ruled that their hands were tied by a prior precedent agreeing with the Department of Justice that the post-departure bar was valid.

We then asked the entire en banc Tenth Circuit to re-hear the case, and our petition was granted. I returned to Denver in 2011 and again argued that the post-departure bar was an invalid regulation because it conflicted with the congressional mandate of a motion to reopen. In 2012, the Tenth Circuit agreed, writing in its opinion: “Congress intended to provide each noncitizen the right to file one motion to reopen, regardless of whether he remains in or has departed from the United States” (Contreras-Bocanegra v. Holder, 678 F.3d 811, 818 (10th Cir. 2012) [en banc]).

That single judicial decision knocked down the abstract U.S. border against reopening for immigrants who were deported but had previously lived in Utah, Colorado, Wyoming, New Mexico, Kansas, and Oklahoma. Since this case, more than half of the federal circuit courts have agreed with its findings. As a result, most immigrants in the U.S. who are deported are now able to file a motion to reopen even after they are forcibly removed from the country.

Downtown Lehi, Utah (Photo: Megan Carter)
In the case of Mr. Contreras-Bocanegra, the appeals court ordered the U.S. government to hear his motion to reopen. He returned to the U.S. legally and had his legal status restored. He continues to live and work in Utah, where he was reunited with his job at the mink farm as well as with his family. For Mr Contreras-Bocanegra, the physical border has ceased to be a barrier now that the intangible one has been breached through litigation.
 
For more on immigration control in the U.S., see César Cuauhtémoc García Hernández's recent post, Creating Crimmigration, and Gabriella Sanchez's post from 2013, U.S. Immigration Reform and the Changing Face of Deportation. For more on deportation, see Ines Hasselberg's A Return Home? Considering Alternatives in the Face of Deportation.

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How to cite this blog post (Harvard style): Carter E (2014) Knocking Down the Abstract U.S. Border. Available at: http://bordercriminologies.law.ox.ac.uk/knocking-down-the-border/ (accessed [date]).