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Immigration Law: Raise Your Hand If You Understand It

02/12/2014 09:23 am ET | Updated Apr 14, 2014

These days everyone, no matter her political stripe, apparently despises U.S. immigration law. It's either too enforcement-heavy or too soft; too cruel or too generous to immigrants. But can we pause for a moment to talk about another, very basic problem? Immigration law is almost impossible to master. It is a messy patchwork of compromises stitched together over decades; a shotgun wedding of often incompatible provisions. Whatever metaphor you pick, the reality remains: the Immigration and Nationality Act is complex, counter-intuitive, and just plain confusing.

Justice Samuel Alito is apparently as perplexed as the rest of us. In his 2010 concurrence in the Supreme Court decision Padilla v. Kentucky, Alito described a passage in a well-known immigration text as "dizzying." Dizzying indeed. Even our nation's most qualified, brilliant jurists often trip over immigration provisions.

One example is a 2012 decision issued by the U.S. Court of Appeals for the Ninth Circuit, Young v. Holder. Young was an en banc case, which means that a large number of judges and their clerks collaborated on it due to the significance of the disputed issues - eleven judges, to be precise. Despite this dazzling array of brainpower - and I state this with no irony whatsoever - the court confused two entirely different defenses to deportation, undoubtedly because they carry the same name.

Without exploring the legal issues in depth - they are, I assure you, dizzying - I will describe what went wrong in Young. The petitioner, Joseph Young, was a lawful permanent resident (green card holder) who attempted to defend against deportation for a drug conviction by applying for "cancellation of removal." A divided court held that he was ineligible for cancellation of removal, however, because he could not show that his type of conviction did not bar relief.

The first surprise comes in footnote six of the majority opinion, where the court indicates that lawful permanent residents applying for cancellation of removal must prove "good moral character" and "exceptional and extremely unusual hardship" to close family members to succeed in their cases. This is not so. Those criteria apply to applicants for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents under 8 U.S.C. § 1229b(b), not applicants for Cancellation of Removal for Certain Permanent Residents under 8 U.S.C. § 1229b(a) - the form of relief Mr. Young sought.

The second surprise is more substantial, because it comes not in a footnote, but rather in the text of a concurring and dissenting opinion signed by four judges. Here, the court details the requirements for applying for cancellation of removal, taking them straight from the application instructions. There is only one problem: the court discusses the instructions for Form EOIR-42B, which is - you guessed it - the form to be completed by nonpermanent residents. The correct form for lawful permanent residents - like Mr. Young - is Form EOIR-42A, which contains different requirements.

Did these disconcerting mistakes change the outcome of the case? My guess is no, because Mr. Young's eligibility for cancellation of removal hinged on factors common to both types of applications. Nonetheless, the opinion is enough to make immigration attorneys throw their hands up in despair ("nobody gets it!"), or to heave an immense sigh of relief ("these really smart people are fallible just like me").

The point of this discussion is that even the most erudite among us have difficulty navigating the Immigration and Nationality Act. This could be seen as an argument in support of comprehensive immigration reform, but I fear that our angry and polarized Congress would create an even more comprehensive mess. So be careful what you wish for. A hasty back and forth of ill-conceived provisions could lead to even more confusion and human misery - not to mention more costly, messy litigation.