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The New Supreme Court Term - Children and Immigration; By Danielle Beach-Oswald

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Supremecourt


With the beginning of the new Supreme Court term on October 3, the Supreme Court will be deciding critical issues on how important issues regarding the age of minors will be decided within the immigration context.  On September 27, the Supreme Court granted certiorari in the case of Attorney General Holder v. Carlos Gutierrez.  Although current immigration law allows an immigration judge (IJ) to issue an order cancelling removal if the immigrant has been "lawfully admitted for permanent residence for not less than five years," the ambiguity of this statute will be decided in the upcoming term of the Supreme Court. 


Carlos Gutierrez attempted to smuggle aliens into the country in December of 2005.  When looking at the time he spent in this country, the original IJ and the 9th Circuit Court of Appeals considered Gutierrez's years he spent with his family living in the United States before he was granted his own legal status.  Gutierrez specifically relies on imputing his father's time in this country as part of Gutierrez's own time spent living in the United States as he originally entered the United States as a minor.  The Obama Administration believes that the 9th Circuit Court of Appeals was too liberal in its interpretation of the relevant statute.  They argue that the statute's meaning must be considered on its face and that nowhere in the relevant INA provision is an imputation of a family member's time on the alien allowed.  The ramifications for the 9th Circuit are also wide.  Currently, nearly half of all cancellation of removal cases occur in the 9th Circuit.  If the Supreme Court allows the imputation, it could have major ramifications for immigration attorneys, immigrants, and government bodies to try to determine if an individual is eligible for cancellation of removal. 


Additionally, this also has implications for the Morton memo.  The Morton memo specifically states that ICE officials will now exercise prosecutorial discretion in deciding which immigrants to bring in for removal proceedings.  Given that Gutierrez was convicted for smuggling criminal aliens into the United States, if the Supreme Court allows Gutierrez to impute the time his father spent in this country as an LPR on his own time as an LPR, it could directly limit the government's deportation effort to focus its efforts on high priority immigrants.


Gutierrez is not the only case that directly looks at the issue of the age of the children of illegal aliens.  In 2005, an Immigration Judge determined that Joel Judalang was removable.  Although Judalang's parents were able to receive US Citizenship after arriving to the United States, they failed to file the necessary paperwork for their then 8 year old son.  Judalang was convicted for manslaughter nearly two decades later and an Immigration Judge found him removable.  Currently, the Supreme Court is trying to determine whether Judalang received derivative citizenship through his parents when he was 8 years old. 


Currently, 1 million illegal immigrants are under the age of 18 and their status remains in limbo.  Several states are now supporting a measure that will attempt to deny the children of illegal immigrants that were born in the United States from being issued birth certificates.  The status of the DREAM Act remains uncertain.   Hopefully, the Supreme Court will offer greater clarity as to how children are to be treated in the INA and lawmakers will take notice and realize that by continuing to ostracize the children of illegal immigrants, attempts at having them become productive US citizens will fail.  


 

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