Not all immigration denials are created equal.
Recently, I participated in the career day at a local elementary school where I had the opportunity to talk about my work to groups of children ranging from Kindergarten to 4th Grade. Rather than the standard “how a bill becomes a law” discussion, we talked about why we need laws and why the rule of law is a crucial part of a free democratic society. It was curious to hear children’s thoughts on what it means to be free and how laws can actually empower citizens to exercise their freedom.
Indeed, having confidence and faith in the rule of law creates predictability for citizens of a nation and helps facilitate compliance with the laws. Sure, some citizens may not care much for compliance. Most, however, do, and they look to the nation’s laws for information and guidance. We, as attorneys, help our clients understand the law and guide them toward compliance. In those instances where a path to compliance is unclear, we zealously advocate for our clients’ rights in light of judicial precedent, policy and societal norms.
A recent dramatic change in adjudication trends of immigration petitions and applications stems from the elimination of deference to prior decisions by the U.S. Citizenship & Immigration Services (USCIS). Thus, every immigration petition or application is now adjudicated de novo (i.e., anew) without any regard to prior determinations on the same set of facts. This elimination of deference eliminates predictability and thereby significantly undercuts the ability of law-abiding people to comply with the law. It also impedes our ability as counsel to advocate for our clients. The precedential value of deference is that it informs future conduct by our clients. For example, a grant of approval by USCIS would impart certain confidence that, absent a change in the facts and in the law, certain conduct would continue to be lawful and deemed as such in future immigration adjudications.
Our clients regularly make references to “the new immigration laws” implemented by the Trump administration, but the laws actually have not changed. The definitions and criteria for visa classifications have remained the same. The change in the adjudication trends, however, has been so stark that the assumption of change in the law is only logical.
In eliminating the policy of deference even in the absence of clear error or fraud, the Trump administration effectively eliminated precedent such that we can no longer rely on any prior government findings/determinations. A set of identical facts for the same applicant can now render a completely opposite outcome such that an individual granted an immigration benefit on numerous previous occasions can now be denied the same benefit even when there is no change in the facts and no indication that any fraud took place or that the previous grants of the benefit were made in error.
The end result: complete unpredictability and virtual impossibility to comply with the law. A side effect: startling statistics that the rates of denials and revocations are on the rise signaling “an immigration crisis”. This, in turn, fuels the immigration debate and promotes anti-immigrant sentiment in our communities where visa denials and petition revocations could be perceived as law breaking.
In a time of overabundance of information and misinformation, it is important to look behind the curtain to study the facts behind statistics. This is absolutely critical in order to preserve the rule of law and the integrity of our legal system for the sake of our freedom.