Case Histories: BIA Opens a Loophole in Immigration Enforcement

By David North, January 24, 2012

A potential gaping hole in immigration enforcement, opened earlier by the Board of Immigration Appeals (BIA), has popped up again.

It deals with a subset of mostly long-term illegal alien border crossers now married to, or otherwise related to, U.S. citizens – a substantial population, but only to a portion of them. It probably pertains to very few aliens who are not from Mexico.

BIA decided a case in 2010 that involved an illegal alien from Mexico who was then the wife of a U.S. citizen. She had been, in 2001, in the back of a car that was waved through a port of entry by a careless border guard who did not, in fact, inspect all the passengers. She had no papers at all in 2001, but figured she could talk her way into the States. As it turned out, she did not need to.

The lawyers for this woman, Graciella Quilantan, argued successfully that since she was not seeking to sneak across the border, she had, in fact, been "inspected and admitted" legally. And since she was subsequently married to a citizen, who had applied, successfully, for an immediate relative visa petition for her, that plus the inspection decision gave her legal status. Had she admitted that she had crossed the border in, say, the desert, she would not, as one who had entered without inspection (EWI), have been granted adjustment of status.

That the lady in question had a bigamous marriage in the past was not held against her, a variable that only warrants a footnote in the BIA opinion.

Were I a lawyer – I am not – I might quarrel with what appears to be a bizarre interpretation of
the word "inspection". Instead let me focus on the basic, real life, difficulty with this decision: the only evidence that the entrance to the nation happened as she described it is Ms. Quilantan's word. Why could not countless others make the same claim?

Ms. Q's claim, in effect, is: "I made an undocumented legal entrance to the U.S."

Anyone who has done more than a little traveling has probably had the same kind of experience. For example, I remember being on a bus going from France to Belgium, long before the Schengen Agreement, when there were still border crossing inspections in Western Europe. It was a hot Sunday, and the border guard stepped into the front of the jam-packed bus and asked "Are you all French citizens?"

There was a roar of agreement from the passengers, the guard gave a Gallic shrug, and we all got into Belgium, more or less "inspected".

Had I been a truly upstanding citizen who knew that later in life he would be studying immigration policy, I might have slowed us all down by showing the official my U.S. passport. There was no demand from the Belgian government for a visa from Americans in those days, so I would have been admitted had I, in fact, been inspected.

I think I returned to France on another bus, later that day, in pretty much the same manner. I also crossed the Swiss-French border in similar fashion, twice in both directions, once on a trolley and once on a delightful little train into the mountains north of Geneva.

Returning to the States, the 2010 BIA decision, by now a legal precedent, popped up earlier this month in a Sacramento Bee article about Rogelio Servin, an illegal alien.

Servin, like Quilantan, did not come into court with totally clean hands; he had earlier spent time in a California prison for domestic violence and was before the immigration judge because of a drunk driving incident. The newspaper story, without saying so explicitly, describes what is probably a cancellation of removal matter. His lawyers argued that he had behaved since the domestic violence case, that he had been in the U.S. continuously for more than 10 years, and that his entrance into the U.S. had been like that of Quilantan. He had arrived as a small child in a car with his parents, and the car had been waved through a port of entry without a real inspection.

The immigration judge ruled that he, in the eyes of the law, had been inspected and granted him legal status on the further grounds that his wife and his small children, all U.S. citizens, needed him. His criminal record was apparently not deemed a barrier to that decision.

In both instances illegal aliens were given amnesty because one or more judges ruled that their admissions had been legal ones. Had these two been EWIs they would have lost their cases.

This brings up what might be regarded as a class distinction made by the Congress. If you arrive with a visa and violate it, you are treated differently – and better – than if you had crossed as an EWI in these circumstances. People with visas tend to be better off financially than people who secretly cross the border by night. It is odd that Congress makes such a distinction regarding how an illegal alien violates the law, but that's the way it is.

So which illegals will benefit from all this? These are sort of double-negative decisions, in the sense that they remove barriers to legalization for some of those previously barred from it. It does nothing for anyone in the U.S. as a visa-abuser, as they are already exempted from the bar. It only helps those who have a chance at a one-shot amnesty, such as adjustment of status through, for instance, marriage, or cancellation of removal, who can now argue that they should not be regarded as EWIs, because of their claim to "inspection" as now defined by the judges.

Regarding potential numbers, the only thing we know for sure is that the immigration bar will do all it can to make full use of these rulings.

As you might expect, the Bee reporter regarded the whole business as a cheerful human interest story:

"Davis waiter Rogelio Servin entered deportation proceedings in San Francisco earlier this month and came home a legal resident, thanks to a little-used wrinkle in immigration law . . . [his arrest for drunken driving] turned out to be the best thing that ever happened to him, [his lawyer] said."

Another couple of examples of how our immigration law, in fact, works.