Monday, March 17, 2014

Saved by a Beatle

Twice before I’ve written about the Romeike family, who left Germany and applied for asylum in the United States on the basis that Germany wouldn’t permit them to homeschool their children. This last week, the case took another turn.

But first, let’s review the family’s immigration history. The Romeike family arrived in the United States on a temporary 90 day visa and then applied for asylum with the United States Citizenship and Immigration Service (USCIS), a division of the Department of Homeland Security (DHS). USCIS declined to grant the petition, and instead sent it over to the Department of Justice’s Executive Office for Immigration Review (EOIR) for an administrative hearing before an immigration judge. (As a point of clarification, this judge was an administrative officer and employee of the DOJ, not a “judge” in the typically understood sense of being part of the judicial branch.) The immigration judge granted the petition, and DHS promptly appealed it to the next level of administrative review with DOJ: the Board of Immigration Appeals.

After waiting about two years due to the backlog of cases, the BIA reversed the immigration judge, denying asylum and ordering the family removed since they did not have any legal status. The family appealed this decision to the United States Court of Appeals for the Sixth Circuit, which affirmed the BIA and held that although homeschooling is protected under US law, denial of homeschooling by another nation does not constitute “persecution” as defined in asylum law. The family next asked the Supreme Court to review, but the high Court declined to intervene. The very next day, DHS informed the family that it would not be proceeding with enforcing the deportation order and that the family had been granted “indefinite deferred status”.

Although it’s been spun as an irony, the government’s position is actually been consistent through the entire case. It determined that the family did not qualify for asylum. It never said the family didn’t qualify for another status, and given the option, declined to push the issue of deportation. This was a classification issue, not a change of heart.

Yet there are plenty of ironies. Those who have been contrasting this family with all the other “illegals” that the Obama administration has decided to not deport are now stuck, since now the family is another instance of immigrants without documentation whom the law is not being enforced against. (Side note: the Obama administration is actually deporting record numbers of immigrants.) Likewise, those who have been condemning the administration for not enforcing the law are now praising the administration for … not enforcing the law against someone they find sympathetic.

Anyway, there’s another interesting element to all this. Contrary to the sentiment you may have heard, President Obama is not the first President to selectively enforce immigration laws. During the 1950s through 1970s, before we had a clear asylum category, Presidents used “parole” power to admit tens of thousands of Hungarian, Cuban, Chinese, Czech, and Indochinese refugees who otherwise didn’t otherwise qualify for status.

But deferred action is connected to a different incident: John Lennon, the Beatle. (No, I’m not referring to Vladimir, the Soviet revolutionary. Nor am I referring to Gregor Samsa, Kafka’s beetle. I’m referring to a member of the British rock band that first toured the United States fifty years ago.)

You see, like the Romeike’s, Lennon had overstayed his tourist visa. And his prior marijuana conviction back in England prevented him from obtaining permanent resident status. So the government initiated removal proceedings against him.

Lennon and his attorney fought the deportation, arguing (among other things) that in light of the government practice of quietly granting “deferred status” and not pursuing every immigration violation, his deportation case constituted being singled out for political purposes. Ultimately, the United Court of Appeals for the Second Circuit determined that the marijuana conviction did not prevent Lennon from being granted status. However, it also noted that it considered the claim of selective prosecution serious. Lennon was eventually granted a permanent resident status.

Thus, deferred status was popularized, and has been an executive tool ever since. Last week's grant of deferred status to the Romeike family is just the most recent publicized instance of the President softening otherwise harsh immigration laws. The Romeikes have simply benefited from the path forged by John Lennon.
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