By Lourdes Santos Tancinco
Philippine Daily Inquirer
Joel was eight years old when he entered the United States. At age 22, he had trouble with the law. A victim was shot and killed. Although Joel was not the principal accused in the crime, he was charged and convicted as an accessory to manslaughter.
The criminal court gave him a suspended sentence of six years and he was released on probation. In 2005, 17 years after the criminal incident when Joel was already 39 years old, the US Department of Homeland Security commenced deportation proceedings against him. The notice to appear at the hearing stated that Joel was deportable based on the voluntary manslaughter conviction.
Joel has lived in the US continuously for the last 36 years. He has a 14-year-old daughter. His parents and two sisters are American citizens. Had Joel been naturalized as a citizen before his entanglement with the criminal justice system, he could have altogether avoided deportation proceedings. Unfortunately, his parents never filed his citizenship application when he was still a minor; hence, he remained a green card holder through adulthood.
Joel appeared before the immigration court to appeal his removal. He argued that the basis for his removal should be waived under the former Section 212 (c) of the Immigration and Nationality Act (INA), a provision repealed in 1996 but which is still given retroactive applicability to certain crimes prior to the law’s repeal.
Despite his efforts, Joel’s waiver application was denied. The immigration court ordered Joel deported. He appealed this decision to the Board of Immigration Appeals (BIA) but was unsuccessful. Joel then elevated his case to the Ninth Circuit Court of Appeals. Again, he was denied relief. The attorneys for Joel then filed a Petition for Certiorari before the US Supreme Court.
This time, Joel’s luck changed. The US Supreme Court granted certiorari and remanded the case of Joel back to the Ninth Circuit Court of Appeals. The US high court concluded that the decision of the BIA in ordering Joel’s deportation based on a “comparable approach” of assessing his waiver defense was arbitrary and capricious.
What is the “comparable approach” that the US Supreme Court deemed arbitrary?
Non-US citizens who have a prior criminal conviction may be deported as a consequence of the crime. But not all crimes are grounds for removal. Felony convictions that have serious consequences to one’s immigration status are the “aggravated felonies,” i.e. murder, rape or sexual abuse of minor, illicit trafficking in a controlled substance, among others.
Under the “comparable approach” used by the BIA, the waiver could be granted only if the ground for which the deportee was being removed has a comparable ground for exclusion.
The Supreme Court said using this approach was a violation of the constitutional principle of equal protection of the law.
Obama vs Arizona
Another immigration case is now before the Supreme Court. The Obama administration filed a lawsuit to block the enforcement of Arizona’s immigration law which allows State police to arrest people without warrants if they have probable cause to believe that they are illegal aliens.
In the same week that the decision on Joel’s case was rendered, the US Supreme Court also accepted the administration’s case for review and agreed to make a determination on whether a state like Arizona may restrict the federal government’s power to regulate immigration and/or grant unto itself broad police powers over immigration issues. A decision is expected sometime in late June 2012.
SC should not be politically driven
For the Supreme Court to grant certiorari on a removal case is certainly not a typical occurrence. But while the case had been penned by a perceived progressive or liberal-leaning Justice, Elena Kagan, the decision is based on solid constitutional grounds and was approved unanimously by all members of the US Supreme Court.
It would be difficult to conclude, under the circumstances, that the decision was simply motivated by the desire of the Supreme Court to influence immigration policy or that it wholly intended to serve strategic political interests.
As an aside but certainly in the same vein, decisions penned by each individual justice on behalf of the Philippine Supreme Court should be equally perceived as simply upholding the constitutional rights of the citizenry and nothing else. This is paramount if public trust in the Court is to be deserved. The integrity of the individual members who are tasked to uphold the rule of law should be perceived as intact and their decisions should pass constitutional muster independent of their ideological inclinations or personal loyalties if the institution is to survive.
(Tancinco may be reached at law@tancinco.com or at 877 7177 or 721 1963)
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