Archive for July, 2018

Inhumanity of the Law, Part 4

July 30th, 2018

Having determined to their own satisfaction that the immigration court could protect C.J.L.G.’s due process rights by “fully and fairly develop[ing] the record” so as to “ascertain and evaluate all relevant facts” and “to discover any facts that might support C.J.’s asylum claim,” the appeals judges turned their gaze to the items that C.J.L.G. had to prove in order to win asylum.

Let us linger a moment over the task the Ninth Circuit envisioned for the immigration “judge”. Recall that only 10% of unrepresented children avoid deportation, compared to 47% of those who have lawyers.  It’s fair to assume that nearly all those whose lawyers won them asylum deserved it.  The immigration “judge” is expected to avoid the risk of erroneous deportations, so she should make the same difference that a lawyer would have.  (Why, then, that 37% gap?  Dunno.)  The “judge” presumably does this without abandoning her duty of fairness to the government; without acting as the child’s advocate; without meeting privately with the child, taking the time needed to fully explore and understand the child’s situation; without developing a litigation strategy for the child or advising the child how to proceed; without investigating the child’s claims independently, outside the courtroom; without identifying or calling witnesses or producing evidence on the child’s behalf.  To do these things arguably would violate the “judge’s” ethical obligations to act impartially, not to give preferential treatment to any individual, not to act as a counselor or adviser for a party in the case, not to represent anyone against the United States, not to engage in the private practice of law, not to initiate or engage in ex parte communications with a party in a pending matter, and to make reasonable efforts to avoid receiving factual information that is not part of the record, all as set forth in the Ethics and Professionalism Guide for Immigration Judges.

The first item was whether C.J.L.G. faced a well-founded fear of future persecution.  They started by looking to the past.  If he had been persecuted already, the court could presume that he would continue to be persecuted in the future unless conditions had changed to invalidate that inference.  The judges found that the gang’s threats to kill C.J.L.G. and his family did not necessarily constitute past persecution, because C.J.L.G. had not been physically harmed, but that the same threats gave rise to a well-founded fear of future persecution “because they portend a likelihood of future physical harm” and because C.J.L.G., as a minor, was more vulnerable to threats than an adult would have been.  Of such niggling is law made.  So C.J.L.G. passed that hurdle.

To establish the second item, C.J.L.G. had to fear persecution “on account of a protected basis – namely race, religion, nationality, membership in a particular social group, or political opinion.”  Did the gang’s threats to kill C.J.L.G.’s family constitute persecution on account of membership in a particular social group, that is, his family? The Ninth Circuit dismissed this argument, reasoning that the causal relationship ran the other way: threats against the family were a means of persecuting C.J.L.G., but not the reason for the persecution.

Some light had glimmered in the Ninth Circuit’s treatment of the first item, albeit dimly, as if from a distant end of a tunnel.  (They considered it a “close question” whether an escalating campaign of intimidation against a thirteen year old kid, culminating in holding a gun to his head and threatening to kill him and his family for noncompliance, amounted to persecution.)  Now they dived further down the rabbit hole.  The appeals judges quoted what they described as “a logical and sequential series of questions” that the immigration “judge” had asked C.J.L.G., leading to the conclusion that he was not persecuted “on account of” his family.  And indeed, C.J.L.G. had testified that the gang had threatened him because he would not join them, and that they threatened to kill his family to get him to comply.  The appeals judges characterized this inquiry as “adequate.” Should C.J.L.G. have been asked why the gang specifically targeted his family?  The appeals judges swept this argument aside, observing (correctly, in my view), “Even if the [gang] targeted C.J.’s family for reasons independent of their efforts to recruit C.J., that would not change the fact that C.J. was not threatened on account of his family.  He was, by his own testimony, threatened because he courageously refused the [gang’s] repeated demands to join them.”

Has any alert reader spotted what is missing from the above?  C.J.L.G.’s “well-founded fear of future persecution” began with the gang’s efforts to make him a member.  Where is the logical and sequential series of questions designed to learn why the gang chose him? How could it possibly be determined whether he was subject to persecution on account of a protected basis, if there was no real effort to ascertain the reason for the persecution?  A lawyer working with C.J.L.G. might well have been able to develop a theory and produce evidence to support it.  The immigration “judge,” conducting a cursory enquiry that stopped at the most superficial level, did not.  The appeals judges, busily picking nits, passed over this huge lacuna in silence.

We haven’t bottomed out, yet.  The third item was that C.J.L.G. feared persecution by the “government or forces the government is either unable or unwilling to control.”  C.J.L.G. had testified that he did not report the gang’s threats to the police because ”they couldn’t do anything” and he was “very afraid.” Since C.J.L.G. failed to produce any further evidence that a complaint to the police would have been unavailing, the immigration “judge” decided that he had failed to show that the Honduran government could not or would not control the gang.

Here it gets a bit technical, having to do with appellate process.  After the immigration court ordered him to be deported, C.J.L.G. found a lawyer and appealed to the Board of Immigration Appeals; but he failed to challenge the immigration “judge’s” finding regarding the Honduran government’s ability or willingness to protect him.  When the Board denied his appeal, C.J.L.G. appealed that ruling to the Ninth Circuit.  It is a general rule in appellate proceedings that if you could have raised an issue in a lower tribunal, but you did not, that issue is “waived” and the appellate court won’t consider it.  You snooze, you lose. So, C.J.L.G.’s lawyer had waived the issue.  The Ninth Circuit could have stopped there.[1]  Instead, over-explaining as people do when prompted by bad conscience, the appeals judges wrote, “even were we to consider this issue, we find that the [immigration judge] adequately developed the record and that her determination was based on substantial evidence.”

Here is the Ninth Circuit’s description of this “substantial evidence” in its entirety:

The [immigration judge] adequately developed the record by introducing and considering a 2014 State Department country conditions report on Honduras. State Department reports may provide objective evidence of a government’s inability or unwillingness to control private actors. [case citation omitted]  Far from reflecting the Honduran government’s inability or unwillingness to control gang violence, the 2014 report states that security forces severely punish gang members.  Accordingly, because the report does not support C.J.’s subjective statement that the police ‘couldn’t do anything,’ we cannot disturb the Board’s finding that C.J. has not shown that the government is unable or unwilling to control the gang.

Finally we have reached the jaw-dropping nadir.  What has happened to the immigration “judge’s” affirmative obligation to discover facts that support the asylum claim?  Where is the logical and sequential series of questions designed to determine the basis, if any, for C.J.L.G.’s statement that the Honduran police would be useless to him?  Why is that statement, coming after all from a Honduran who, it may be inferred, possesses some personal and intimate familiarity with the crime-fighting effectiveness of his local police, dismissed as “subjective?”  That word, “subjective,” is the rhetorical giveaway revealing bad faith.  How is it possible to so characterize C.J.L.G.’s statement, in the absence of any enquiry as to its basis?

If I read correctly, the State Department report was introduced into evidence not by one of the parties, but by the immigration “judge.”  Astonishing!  Remember the court’s affirmative obligation to compensate for the alien’s lack of an attorney by compiling a record containing all relevant facts, including those that would support the asylum claim.  The “judge” stood this obligation on its head.  Rather than flesh out the basis for C.J.L.G.’s claim by careful enquiry, the “judge” introduced an out-of-court statement from an arm of the U.S. government – that is, the statement of C.J.L.G.’s adversary.  Was there anyone in the courtroom who might have cross-examined this evidence, tested its credibility, and challenged its assertions and admissibility?

As described, the report does not perform the evidentiary task ascribed to it.  Even if Honduras truly punishes gang members severely (when they are caught), that is irrelevant to C.J.L.G.’s claim that he, C.J.L.G., could not expect effective police protection. The only evidence cited by the appeals judges that bears directly on the ability or willingness of the Honduran police to protect C.J.L.G. was C.J.L.G.’s own uncontradicted statement.  But of course, he was just a thirteen year old kid with a stake in the outcome, unlike the State Department, whose policies and publications spring from the unpolluted well of disinterested truth without regard or favor for the preferred positions of any other agency of the United States government.

It is absurd.  The immigration court’s own docket, flooded with asylum claims of Hondurans fleeing gang violence, would amply evidence an uncontrolled situation.  The daily press documents episode after episode of this ongoing tragedy.  On the last page of C.J.L.G. v. Sessions, the Ninth Circuit described Honduras as “a country in turmoil.”  Whence this turmoil?  Why use that word?  Is it evidenced in the immigration court’s record?  Or did the appeals judges just let slip what we all know?

There is more to the decision.  For example, the third Mathews factor weighs in the government’s favor because providing counsel for children like C.J.L.G. would “significantly increase the funds expended on immigration matters.”  C.J.L.G. was not prejudiced because the “judge” compiled an “adequate” record.  And so on. At the end, crocodile tears: “We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity.  But while our hearts are with C.J., the law does not support his requested relief.” And indeed, in the territorial jurisdiction of the Ninth Circuit Court of Appeals, that is the law, because they say it is, until the court reverses itself or the Supreme Court tells us different. The Ninth Circuit did not have to decide as it did.  No existing Supreme Court decision compelled this result.  They could have done justice.  Instead, they pulled the trigger and offered thoughts and prayers.


This is the fourth of a four-part series.

[1]Appeals courts can and do make exceptions to the waiver rule, at their own discretion, but they do so rarely.

Inhumanity of the Law, Part 3

July 28th, 2018

Having determined to their own satisfaction that C.J.L.G. was not entitled to a court-appointed lawyer’s assistance under the Immigration and Naturalization Act because that statute guarantees legal assistance only to people who can hire their own attorneys, the Ninth Circuit judges turned their eyes to the Fifth Amendment and its right of due process.

I would like to begin this post with a circuitous digression.  Reading the above, some may be reminded of Anatole France’s famous quote, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”  Some readers may wonder whether it might be argued that the constitutional right to equal protection of the laws might invalidate a statutory right to have legal representation only if you can hire your own lawyer.  What about people who can’t afford an attorney?  Remember that we are talking about the Immigration and Naturalization Act, which is a federal law.  It may surprise you to know that the Equal Protection Clause does not apply directly to acts of the United States government.  It is part of the Fourteenth Amendment, which is addressed to the states, not the feds.  The right to due process of the laws, which does bind the federal government (through the Fifth Amendment) as well as the states (through the Fourteenth), is sometimes held to encompass principles of equal protection.  Whatever the potential merits of a challenge to the Immigration and Naturalization Act based on concepts of equality under the law, it all comes back to due process.

Based on a United States Supreme Court decision called Mathews v. Eldridge, the Ninth Circuit looked at three factors to decide what degree of process C.J.L.G. was due.  First, what private interest of C.J.L.G.’s was at stake?  Second, was there a risk that he would be erroneously deprived of that interest because of the immigration court’s procedures, considering also whether any additional safeguards might have avoided such a risk? Third, what governmental interest was served by not paying for a lawyer for C.J.L.G.?  To these three they added another factor, based on another Supreme Court decision.  Even if C.J.L.G. passed the Mathewstest, he would be denied court-appointed counsel unless, due to lack of legal representation, “he may lose his personal freedom.”

It starts off well enough. “If C.J. is deported, he will be returned to a country where his liberty – indeed, he alleges his very life – may be at risk.  The fact that the [gang] attempted to recruit him under duress – at gunpoint no less – before he fled provides reason to believe that C.J. would encounter similar threats and perhaps worse upon his return.”  Citing these reasons, the appeals court weighed the first factor, C.J.L.G.’s interest in not being deported, in his favor.

The second factor, as the appeals court posed it at the outset of its opinion, amounts to this question: what is the chance that C.J.L.G. was erroneously ordered to be deported because he did not have a lawyer, and would additional safeguards have avoided such a risk?  The appeals judges accepted the premise that “an attorney provides a level of advocacy that cannot be supplied by any of the other classes of persons that an alien is entitled to have accompany him in a removal proceeding.”  They also accepted the accuracy of government data showing that in 2014 “only 10% of unrepresented children were permitted to remain in the United States, whereas 47% of represented children were awarded relief in their immigration proceedings.”  I read these statistics to indicate that about 1/3 of unrepresented children are deported erroneously due to their lack of legal representation. Especially considering that, as the appeals judges had observed, an attorney’s presence so fundamentally and pervasively impacts a proceeding that it is impractical to try to sort out what specific difference it would have made, these numbers would seem to take care of the second factor, right?

Not so fast.  Down the rabbit hole we go.  The Ninth Circuit sidestepped this implication by redefining the question: “our lodestar is the due process right to a full and fair hearing – not some conceived-of entitlement to the skills of an attorney… Whether alien minors can be afforded a full and fair hearing absent court-appointed counsel, and whether C.J. was afforded a full and fair hearing in his particular case, therefore guides our enquiry.”

Note the tone of that phrase “some conceived-of entitlement to the skills of an attorney.”  Whence this gratuitous snark?  Appellate judges, who tend to masquerade as mere legal technicians, write some of the most emotionally repressed prose one ever will read, but in this dismissive, almost contemptuous locution I can see something peeking out.  It indicates, to me, an underlying emotional unease, another whiff of bad conscience. It is only human nature to become irritated and angry with the persons we harm even (or perhaps especially) when we feel guilty for doing so.

Note also the way the second factor has morphed.  It started out as the risk that C.J.L.G. was ordered to be deported erroneously, because he did not have a lawyer.  Now it is two different questions: first, whether it is possible for an unrepresented minor to have a “full and fair hearing,” and second, whether C.J.L.G. had such a hearing.  On the one hand, the chance that C.J.L.G. would not have been deported if he had been provided a lawyer; on the other, did he have a “full and fair” hearing?

In order to decide whether there has been a full and fair hearing, one first must decide what “full and fair” means.  For elucidation,the appeals judges looked to the Immigration and Naturalization Act. A statute is an odd place to seek the meaning of a constitutional concept (one would expect it to be the other way around) but that is what they did.  The Act, they found, provides the alien a “reasonable opportunity” to examine evidence against him, to present evidence on his own behalf, and to cross-examine the government’s witnesses.  Also, immigration court judges are obliged to ”fully and fairly develop the record,” a duty which “distinguishes immigration proceedings from other adversarial forums where judges act only as neutral arbiters. Instead, the [immigration judge] shares the responsibility with the applicant to ascertain and evaluate all relevant facts.”  In C.J.L.G.’s case, because his mother “was ill-equipped to understand the proceedings or to comprehend  C.J.’s burden in establishing eligibility for relief, and the government asked no questions… it was up to the [immigration judge] to discover any facts that might support C.J.’s asylum claim.”[1]

Note that the goal has moved again, from whether any unrepresented minor could have a full and fair hearing and, if so, was C.J.L.G. such a one, to the more specific enquiries whether he had a reasonable opportunity to confront the witnesses and evidence against him and whether the immigration “judge” adequately developed the record.  Note also a further sleight-of hand.  Since C.J.L.G. and his mom were incapable of exercising their “reasonable opportunity” to examine and present evidence and cross-examine government witnesses, the immigration “judge” will stand in for them.  How the immigration “judge” is supposed to do this on behalf of litigants who don’t understand what is going on, are barely literate, are impaired by immaturity from effectively advocating for themselves, and express themselves in “borderline inscrutable and nonresponsive” terms, as the appeals court described it, is nowhere explained.

The appeals judges sliced the salami even a little thinner. They assessed what items must be proved in order to establish an asylum claim, whether the immigration “judge” developed the record as to each, and whether the ‘judge’s” final determination on each item was supported by “substantial evidence.”  Finally, they considered whether anything further should have been done, either for C.J.L.G. standing alone or for the class of alien minors to which he belonged.

In this way the appeals judges conducted a process of rationalization which, at each step of the way, removed them further from considerations of justice, and further into a narrow technical analysis.  This is a perfectly appropriate strategy in most cases, which must be decided on the basis of clearly articulated criteria and transparent reasoning in a manner aimed at compelling the assent of any reasonable reader.  Most cases present more-or-less technical and/or straightforward factual and legal situations.  Most cases do not thrust the court into the often relatively murky, value-laden consideration of what may be just.  Some thinkers would evade the problem created by the latter sort of case by denying that law and justice are necessarily related.  I do not intend to engage that debate, other than to observe that a mode of legal reasoning which divorces itself from considerations of justice is one that knowingly sets a thirteen year old boy to defend himself against the federal government in a proceeding that could result in his exposure to persecution, torture, and death, with the assistance only of someone ill-equipped to understand what is going on, expecting that the tribunal, unassisted by any person competent to act on the boy’s behalf, will acquaint itself fully with all relevant facts and will make a fair decision, and that any resulting errors can be addressed on appeal on the basis of the record so compiled.

In the next Part we will look at how this sugars out.


This is Part 3 of a series.  Another Part will follow.

[1]C.J.L.G. had claims in addition to and separate from his request for asylum, but as it is the asylum claim upon which the Ninth Circuit mainly focused, perforce so shall I.

Inhumanity of the Law, Part 2

July 25th, 2018

Having determined to their own satisfaction that deportation of an already traumatized thirteen year old to a hostile environment, where he would face the risk of substantial impairment of his liberty due to persecution, torture, and death (as the appeals court judges described his situation), did not implicate liberty interests sufficiently akin to a day’s incarceration in jail or a juvenile detention facility, so that he was not entitled to have the government provide him with an attorney to defend him against deportation as he would have been entitled to an attorney to defend him against charges of crime or juvenile delinquency by virtue of their incarcerative potential, the Ninth Circuit judges considered whether the immigration court’s failure to provide C.J.L.G. with a lawyer resulted in a deprivation of his right to due process of the law.

Due process rights flow from several sources.  Most important to the Ninth Circuit’s decision in C.J.L.G.’s case were the Fifth Amendment to the Constitution, and the statutes governing immigration.  The Fifth Amendment states the general rule that “no person shall be deprived of life, liberty, or property without due process of law.”  Note that it applies to “persons,” without regard to citizenship.  Statutes implement such broad constitutional guarantees.  The Immigration and Naturalization Act says that an alien in immigration court “shall have the privilege of being represented (at no expense to the Government) by such counsel… as [the alien] shall choose.”  C.J.L.G. argued that he had been deprived of due process on both the constitutional and statutory levels.  The appeals court focused on the statutory claim first, consistent with the appellate preference for deciding cases on the narrowest basis possible. I’ll follow that order, looking at court’s treatment of the statutory issue in this post and the constitutional issue in the next.

In order to overturn the deportation order, the appeals court held, C.J.L.G. had to show, first, that the immigration court had violated his due process rights; and second, even if his rights were violated, he also would have to show that this “prejudiced the outcome,” that is, with a lawyer he could have avoided deportation.

Let’s pause right there. The appeals court acknowledged that there is one established exception to the rule requiring a showing of prejudice: “A petitioner need not show prejudice where he was denied his statutory right to privately-appointed counsel.”  Of the two reasons the appeals court gave for this exception, the second is interesting: “denial of counsel differs from other statutory violations because it fundamentally affects the whole of a proceeding, meaning it is impractical for courts to determine whether prejudice accompanied a particular denial of counsel.” Catch-22!  C.J.L.G. has to prove prejudice, but it cannot be done.

To switch literary allusions, the Ninth Circuit judges dived down a rabbit hole.  In a previous case, Jie Lin v. Ashcroft, the Ninth Circuit had reversed the deportation of a juvenile, Jie Lin, because the lawyer who had represented Lin in immigration court had done such a woeful job that Lin was effectively unrepresented.  C.J.L.G. argued, if Lin’s deportation order was reversed for lack of competent legal representation, was not C.J.L.G.s claim to reversal even stronger?  He had no legal representation at all.  The Ninth Circuit responded that the two cases were basically different.   They observed that Lin himself had hired the crappy lawyer, whereas C.J.L.G. hadn’t hired anyone.  Recall that the immigration statutes grant aliens the “privilege” to be represented by a lawyer in immigration court proceedings “at no government expense.”  The Lindecision, said the Ninth Circuit judges, “is rooted firmly in the statutory right to privately-retained counsel,” that is, the right to be represented by your own, privately hired attorney.  By demanding that the government provide him with a lawyer, C.J.L.G. was talking about a different sort of right, one which the statute did not give him.

Is a person deprived of counsel due to that counsel’s incompetence, as was Jie Lin, in a different situation from a person lacking counsel entirely, as was C.J.L.G., with regard to due process rights?  The Ninth Circuit answered, yes, the statute enacting those rights treats Lin and C.J.L.G. differently because one hired a lawyer and the other didn’t.  But we can’t stop there; a statute may implement a constitutionally fundamental right, but cannot restrict it.  To determine whether there was a substantively meaningful basis for distinguishing Jie Lin’s case from that of C.J.L.G., the Ninth Circuit would have had to look behind the words of the statute and decide whether the statutory “privilege” of representation “at no government expense” is coextensive with the Fifth Amendment’s due process rights.  Why should “due process”mean one thing for a person who can afford counsel, and another thing for a person who cannot?  But they didn’t go there.

Instead, they went deeper down the hole.  When the Ninth Circuit reversed Jie Lin’s deportation order and remanded his case, a court-appointed lawyer was not among the remedies they told the immigration court to offer him.  (These included giving Lin a postponement to find competent counsel or helping him to find one.)  Since Lin wasn’t offered this remedy, the Ninth Circuit implied, Jie Lin v. Ashcroftcannot be precedent for providing it to C.J.L.G., even if the cases weren’t different, although they are, so there.  I have to call this disingenuous.  Lin was not asking for court-appointed counsel.  Lin had been able to hire a lawyer.  It does not appear from Jie Linthat he would have been unable to hire another lawyer.  In short, there is no reason why the remand would have provided a court-appointed attorney for Lin, even if the Ninth Circuit had accepted that a right to such a thing might exist.

You may at this point be thinking, okay, Seth, I’m confused.  Are you saying that the Lin case is the same as the C.J.L.G. case, or are you saying it’s different?  You can’t have it both ways.  So… it’s true that Jie Lin v. Ashcroftdid not state explicitly that minors facing deportation have a right to court-appointed counsel if they cannot find one for themselves.  As the Ninth Circuit correctly observed in C.J.L.G. v. Sessions, that was not the issue in Jie Lin.  But… if one is looking for a statement that a minor deprived of the effective assistance of counsel in immigration court has been denied his right to due process, Lin is the precedent you want, and the Ninth Circuit’s efforts to distinguish it from C.J.L.G.s case make no sense.  Their emphasis on the statutory language at the basis of Jie Linis mumbo jumbo, since the statute merely reflects the Fifth Amendment.  Moreover, on the one hand the Ninth Circuit said that Jie Linhas no bearing on C.J.L.G.,while at the same time pointing at the relief Jie Lin was granted, to C.J.L.G.’s detriment.  Who is having it both ways?

But wait, there’s more.  The Ninth Circuit did not stop at enlisting Jie Linagainst C.J.L.G. despite their own argument that the cases have nothing to do with each other.  They also claimed that by granting C.J.L.G. several continuances “over the course of nearly a year and a half” to explore the DHS list of putatively free attorneys, the immigration “judge” “took an affirmative role in securing representation by competent counsel, which is all that Jie Linrequires.”

Let us not spend too much time wondering why, if C.J.L.G. was not entitled to counsel in the first place, the immigration court should have had an affirmative obligation to help him find one.  In the end, the answer may have something to do with bad conscience.  Let’s consider instead the Ninth Circuit’s lack of interest as to why these efforts were unavailing.  C.J.L.G.’s mom had told the immigration “judge” that she had tried to find an attorney and they all cost more money than she had.  If any evidence contradicted this, or if the mother was not credible, the Ninth Circuit did not mention it.  She was given a list.  She was given time.  That should have been enough.  If it wasn’t enough, well, as the saying goes, “It sucks to be you.”

Scrupulous attentiveness to the niceties of verbal distinction – e.g., “statutoryrights” – sits side by side, in C.J.L.G. v. Sessions, with strange indifference to what those words represent and to the litigant in his capacity as a human.  I am in mind of an extraordinary footnote in the decision.  The Ninth Circuit judges appended it to their evaluation that much of what C.J.L.G.’s mother wrote in her son’s asylum application “is borderline inscrutable and non-responsive.”  The footnote gives an example.  In response to a query whether the applicant “has ever caused harm or suffering to another based on a protected ground, the application states: ‘THE GAN’S TOLD ME I HAVE TO KILL A PEOPLE TO BE AND THE GAN’S.’”  Is this not heartbreaking, and the condescension breathtaking?  Not least because of the appeals court judges’ implicit assumption that C.J.L.G. and his mother, barely literate in English, without the assistance of a lawyer, should have understood what was meant by “causing harm or suffering to another based on a protected ground.”

I say the Ninth Circuit was strangely indifferent to human reality.  Legally, of course, if C.J.L.G. was not entitled to a lawyer, it does not matter why he did not have one.  Technically, that’s all there is to it.  But… let me put it this way.  When I was sworn in as an Assistant Attorney General for the State of Vermont in 1990 by the great Jeffrey Amestoy (a position I retired from in 2017), he said to me, “Do justice.”  We call the judges who sit on our supreme courts “justices.”  The law enforcement branch of our federal government is called the Justice Department.  Lawyers and judges work in something we call “the justice system.”  No matter whether it may be describable in a technical sense as legally correct, a decision lacks justice that starts out by acknowledging the fundamental and pervasive importance of an attorney in court proceedings and the limited competence of a minor to advocate for himself, goes on to ignore the reasons why that same minor, barely literate, facing deportation, may have failed to find a lawyer, and concludes that such as he can do without one.  Tortured language and reasoning are evidence of this lack.


This is the second part of a series.  A third part will follow.  Stay tuned.

Inhumanity of the Law, Part 1

July 20th, 2018

Some weeks ago I used this platform to express my horror at the practice of forcing minors, some as young as three, to appear in U.S. immigration court proceedings unrepresented by any adult, let alone by a lawyer.  I said I thought that any “judge”*who presided over such a proceeding should be fired, and any government attorney who proceeded against such a respondent should be disbarred.  In my shock at having learned about such practices, I was reacting out of humanity, not as a lawyer.

Since then, I have learned some things.  They don’t really change my reaction much at all.

I have learned that this barbarism is not peculiar to the present administration, but is a feature of our immigration law enforcement system.  Since I do not think that Trump et al. represent anything fundamentally new on the American political scene, I’m not surprised.  He is neither the first racist, nor the first authoritarian, nor probably the first psychopath to occupy the White House, nor the first occupant to combine all three traits.  He is a throwback to the earliest days of the republic, redolent of Andrew Jackson, his hero.  Trump is unique, perhaps, in his devotion to the Oval Office as a vehicle for personal aggrandizement, but in all relevant respects he represents longstanding if odious American traditions.  Our immigration laws originated in racist and nativist initiatives to constrict the nineteenth century’s essentially free flow of immigration.  They are at basis illiberal and invidious in their treatment of immigrants.

I have learned that, while it is generally accepted that persons appearing in immigration court to answer deportation petitions have a constitutional right to due process, they are not considered to have a legally established right to government-appointed counsel.  That is, they can have a lawyer, if they can get one, but the government is under no obligation to provide one for them.  So the three year old peering over counsel’s table in the courtroom is allowed to hire her own lawyer, but if for some reason she doesn’t do so, she’s on her own.

“But how can this be?” you ask.  After all, we provide a lawyer to anyone facing even one day of imprisonment on criminal charges who cannot afford to hire counsel for themself.  The “reasoning,” if you want to call it that, behind the difference in the way we treat cases in immigration court turns on the fact that immigration court cases do not belong to the “criminal” classification.  Instead they are classified as “civil.”

“Aha!” you say, “Criminal not civil…  I see… that explains it… Not!  Why should a person’s right to representation depend on how the case is classified?” The answer, in part at least, is that the Sixth Amendment to the U.S. Constitution states that every defendant in a “criminal” case has a right to counsel. This is commonly read to mean that under the Constitution a criminal defendant who cannot afford counsel must have a court-appointed lawyer.  By contrast, the Constitution says nothing about any such right for litigants in non-criminal proceedings.  This is commonly understood to mean that there is no such right.

But that leaves the question why immigration court proceedings, which may result in deportation (or “removal” as the jargon has it) are not considered to be criminal cases, or the equivalent thereof.  What is the difference between a criminal case, where you get a court-appointed lawyer, and a civil one, where you don’t?  If the basis for the distinction between “criminal” and “civil” cases indicates that removal proceedings are more similar to the former, then immigrants facing removal who can’t afford their own lawyer should have one provided for them by the government.

Let us consider this question as it was answered on January 29 of this year by the Ninth Circuit Court of Appeals in the specific context of an appeal by a minor, C.J.L.G., claiming that he had been denied his right to legal representation at a deportation proceeding.  The thirteen year old boy was assisted in immigration court by his mother, who had fled with him from Honduras the day after gang members, capping an escalating series of attempts to recruit him, had held a gun to his head and threatened to kill him, the mother, and his aunt and uncles if he did not join the gang within 24 hours.  Although DHS had given the boy a list of attorneys who might be willing to represent him “pro bono”, that is, for free, the mother eventually explained to the immigration court “judge” that every attorney they contacted wanted $6,500, and she did not have that kind of money.  The boy lost his case in immigration court and was ordered to be deported.  He appealed this decision, and the appeal went to the Ninth Circuit.

The Ninth Circuit’s decision is silent as to whether the immigration court “judge” enquired specifically why the mother had not secured representation from one of the purportedly free attorneys on the DHS list.  Somehow the “judge” does not appear to have asked why she couldn’t find a free lawyer despite having been over a year of time and multiple continuances in order to contact the names on DHS’ list of purportedly free attorneys. In its decision, which you can read here, the appeals court several times refers to the significance of the long delay, the list, the continuances, which it sees as evidence of the immigration court’s fairness; the “judge” gave her every chance to get a lawyer.  The appeals judges were not interested to learn why none of this availed.  They could have remanded the case to the immigration court for it to take evidence and make findings on this question, but they didn’t want to know.  The game, to them, was not worth the candle.

Appealing the deportation order, C.J.L.G., now represented by a lawyer, argued that the Supreme Court recognized that children cannot receive fair hearing without counsel when it held that minors in delinquency proceedings, facing commitment to a state institution, are entitled to court-appointed counsel at government expense. The Ninth Circuit responded that the Supreme Court’s focus was on the possibility of incarceration in a state institution “which is akin to punishment for a criminal conviction.”  Since C.J.L.G. wasn’t facing incarceration, the immigration court proceeding was not “akin” to a criminal one, and the government was not obligated to provide a lawyer for him.

My purpose here is not to critique the Ninth Circuit’s decision from a legal, scholarly perspective. I do not know enough about immigration law and constitutional law to do that.  But there are other types of significance.  On the one hand, the Ninth Circuit denied C.J.L.G. a lawyer because “such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.”  On the other hand, the same judges acknowledged that “the private liberty interests involved in [removal] proceedings are indisputably substantial,” that “children are, as a general rule, less capable of advocating for themselves than are adults,” that “arguably, sending C.J. back to a hostile environment where he has faced death threats in the past implicates his freedom,” and that a person such as C.J.L.G.’s interest in the outcome of removal litigation “could hardly be greater.  If the court errs, the consequences for the applicant could be severe persecution, torture, or even death… deportation is a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country… An alien facing deportation stands to lose the right to stay and live and work in this land of freedom.”  (Yes, in explaining why they approved sending this thirteen year boy back to risk persecution, torture, and death, the Ninth Circuit judges did employ, without the faintest hint of irony, the phrase “land of freedom” to describe the place in which they were denying him the right to stay and live and work.)  Despite all this, the Ninth Circuit judges focused their analysis on an idea the Supreme Court had expressed: “actual imprisonment is the line defining the constitutional right to appointment of counsel.”

The Supreme Court had drawn that bright line against Abby Gail Lassiter, a mother who asserted a right to counsel at government expense in a proceeding to terminate her parental rights.  The Ninth Circuit could have distinguished Lassiter’s case from that of C.J.L.G. on several grounds. Lassiter was an adult; C.J.L.G. was a kid.  Awful as it is to lose one’s parental rights, fear of persecution, torture, and death are on a different scale.  The stakes “could hardly be greater.”  The Ninth Circuit could have held that fear of persecution, torture and death implicate liberty interests at least equivalent in gravity to the potential consequences of conviction for delinquency (commitment to a state institution) or its kin, crime (a day or more in jail).  But there was that word, “incarceration.”  The Ninth Circuit’s use of that word, incantatorily, as if to invoke it were to dismiss all the claims of realities the judges themselves recognized and eloquently described, raises the question: what kind of thought process is involved here? Is it concerned with justice in the real world, or with the ritual manipulation of magic formulae?

This is the first of a multi-part series.

*I am putting “judge” in scare quotes because I don’t think anyone who would preside over such a farce deserves the title, or to be called “the Honorable”.

The Key

July 18th, 2018

It all makes sense once you accept that absolutely nothing he says has any substantive meaning.  Everything he says is purely transactional, responsive only to the situation and whatever he considers will advantage him in that situation.  He behaves in public in such a way as to reveal this, because he does not understand fully that other people use language differently.  He thinks we all are like him.

ICE Evil

July 6th, 2018

It has been reported recently, by credible sources, that ICE is forcing toddlers – yes, children as young as three years old! – to appear in immigration hearings alone and unrepresented. (See It seems incredible that our system of justice, in any of its branches, would lend itself to such a barbarous perversion, but that apparently is precisely what this administration is doing. Talk about kangaroo courts! I want whoever is responsible for this shameful practice to be exposed and punished. I want every “judge” or “magistrate” who allowed his or her courtroom to be degraded in this manner to be stripped of his or her position and cast into the gutter. I want every government attorney who colluded in such a sham proceeding to be disbarred. I am so utterly disgusted! The so-called ‘family separation” policy was bad enough, but this stinks in another way; it is a fundamental corruption and perversion of the law and the legal system. The Trump administration is not merely another ideological faction with whom we happen to disagree. It is radically evil and must be opposed and fought until it is uprooted and destroyed root and branch.