Tree of Life

October 30th, 2018

Let me share a few thoughts I have as a Jewish person relating to last week’s massacre at Tree of Life synagogue in Pittsburg.  I don’t write as a representative of Jewry or of any of its rich, complex, mysterious lineages.  I write as a Jewish person, in a very personally Jewish spirit, the spirit, for example, of remembering that the first girl I kissed, some fifty-odd years ago at summer camp in Vermont, was from Squirrel Hill.  I hope she and her family are alive and well.  When the names of Mr. Bower’s victims became public, my first impulse was to scan the list for hers.

I am prompted to write, to add my pittance to the overwhelming babble of lament, analysis, and commentary, by some things I heard on the radio on Monday.  One was the claim by advocates for immigrants that this was an attack on all immigrants and minorities.  Another, coming from a diametrically opposite point on the political cow-pie, was Attorney General Sessions’ announcement that this was an attack on American values.  A third was a commentator’s statement that Jews are like “a canary in a coal mine,” with rising anti-Semitism indicating social disruption and dysfunction.

Well, no.  I’ll take up the “canary in a coal mine” later, but, with regard to the first two, it wasn’t either of those things.  What Mr. Bowers attacked was a Jewish person, and another Jewish person, and another, eleven times.  He previously had been known to the public, to the extent he was known at all, for virulent on-line statements directed at Jews as the alleged instigators of what he considered to be a campaign of genocide against whites. He went to a famous Jewish community. He entered a Jewish house of worship. He sought out the Jews inside.  He killed as many of them as he could. While he did so, he yelled anti-Semitic invective at them.  He told the officers who arrested him that Jews are committing genocide against his people and he wants to kill Jews.  In short, it would be hard to imagine how he could have been more narrowly specific in his motivation (hatred and fear of Jews), targeting (Jews), and execution (killing eleven Jews).

Despite which, people from both the left and the right converge on characterizing the event as something other than what it was.  It’s not “just” an attack on Jews; it threatens immigrants and other minorities and American values.  What is the reason, common to left and right, that creates this distortion?  I think it has to do with making the massacre relatable. We have an instinctive common humanity that makes us recoil from the kind of horror that Mr. Bowers perpetrated. But that is overlaid by the vast perceptual and conceptual apparatus with which we consciously apprehend the world; and that is where relatability comes in.  The gravity of the horror demands that we relate to it.  But how are we to do that?

Start with attitudes about Jews.  There is going to be an element of caricature in the next few paragraphs, for which I apologize.  My excuse is that it would take a book of several volumes to present a fully fleshed, nuanced vision.  I hope that what I depict here will bear a recognizable enough relation to reality so that it can be considered broadly accurate, if not entirely fair.

American leftists, even including many Jews of that description, think about Jews, when they do so at all, mostly in terms of Team Israel v. Team Palestinian, with their sympathies tending towards the latter.  Otherwise they stereotype American Jews as Ashkenazi, quasi-white, economically successful, well educated, and liberal, all of which “privilege” tends to place us outside the sphere of leftist concerns.  Simply put, American leftists don’t tend to care about Jews as people who are Jewish, apart from the reflexively schematized issues of social and economic and political justice that are considered ideologically important.  So to describe a massacre of American Jews as “a massacre of American Jews” does not, for American leftists, make the event fully relatable.  But there is the undeniable horror, and the need to make sense of it.  How is this gap to be bridged?  This is done, I think, by using the same mental cantilever out of which the largely bogus concept of “intersectionality” is constructed.  As used on the left, this term largely seems to mean, “Whatever your issue or problem is, it’s actually all about me.”  Anyone who has gone to a rally about climate change and had to sit through speeches about LGBTQ rights, or vice versa, knows what I mean. Thus, a murderous assault directed at Jews can be made to appear to implicate whatever the cause du jour may be.

Non-Jewish, American right wingers have their own constellation of reasons why it has to be about something other than Jews if it’s going to be relatable. They mirror the attitudes of Jewish right wingers, but for different reasons. Jewish right wingers, like most Jews born in the post-WWII era and before, are afflicted by severe cultural post traumatic stress disorder, consequent upon the Holocaust.  Due to their proclivity for authoritarian, nationalistic “strength”, they cling to Israel as a sort of lethally capable security blanket.  Although they would consider me utterly absurd for saying so, I do not think that right wing Jews care that much about Jewish persons, as apart from the Jewish State and its institutions.  (Consider, for example, how the right wing Israeli government, which American right wing Jews adore, treats all strains of religious Judaism to the left of Orthodoxy.)  The non-Jewish right wingers come to their attitudes about Jews and Israel by a somewhat circuitous route.  There is an Evangelical Christian notion that Judgment cannot occur until all the Jews have gathered in Israel.  This makes Israel (a) eschatologically necessary and (b) the vehicle for getting rid of the Jews.  The latter component is congenial to right wing thinking, which has a long history of casual anti-Semitism and worse.  The Evangelicals’ electoral importance mandates the right wing’s adoption of their attachment to Israel.  The bottom line is that Israel matters, but Jewish persons, as such, don’t.  Confronted with an atrocity on American soil against American Jews of such a magnitude that some sort of response is unavoidable, a right wing Christian like Sessions automatically downplays the victims’ religion and ethnicity in favor of using a politically expedient label for the pigeon hole in which to bury them.

I recall an incident that occurred to me over forty years ago at Middlebury College, when I was a student there.  It is, I think, emotionally if not logically relevant.  It occurred after dinner in a lounge in one of the small dining halls on the south fringe of the campus.  My chair was backed up against one of the thick columns that supported the ceiling, invisible to a group on the other side of the column who were engaged in talking about their fellow students.  Said one of them, loudly and clearly, “He’s not a person.  He’s a Jew.”  To the credit of the others, there was a moment of silence.  Then the gay banter continued.

Here’s the point.  We live in a culture that does not care about Jewish people as people who are Jewish.  An assault on us is not relatable unless it can be characterized as an assault on something else – in which, case, of course, it no longer is an assault on us!  It cannot be seen and lamented just for being an attack on Jews, as such.  To the dominant culture, right and left, to the extent we are Jewish, we are not persons in the same sense they are.

When I was little, my mother told me something I have wrestled with ever since.  I don’t recall exactly what elicited it.  I must have come to her with some complaint about how the other kids treated me, or how they were treated.  She said, “You are different.  You always will be different.  You can deny it, but it always will be so, and they always will know.” I used to think about this mostly in relation to Christmas and Easter, Chanukah and Rosh Hashanah and Yom Kippur, even after I went to Middlebury.  The Tree of Life massacre reminds me how deep it really goes.  Speaking of which, I listened to the radio all day Sunday and Monday and never heard that word, massacre.

Now for that third thing, fellow citizens.  I am not your fucking canary in a coal mine.  I am not an instrument with which you can diagnose your disease.  I am a person.  I am Jewish.  I am American.  And I don’t live in the same sick country as you.

Drill

October 26th, 2018

There were several ways they used to do it.  One depended on our being small enough, so I assume it was used only on younger kids, in the early grades.  The crackly voice would come on the school public address system and we would slide off our seats onto the floor, under our desks, where we would crouch in silence, the teacher standing silently in front of the room by her desk, until the crackly voice told us it was okay to emerge.  I wonder now what the teacher was thinking.  Unlike us, she did not hide under her desk.  How did she feel about that?

It was like the shooter drills they subject kids to, these days, except we weren’t hiding from some potential random lunatic with a gun who might or might not exist and who might, if he or she existed, kill or wound some of us.  We were hiding from the mutual assured destruction that was the explicit policy of the great powers that ruled our world, from the universal total incineration of which only governments are capable.

Another way they did it, that I remember (and surely there were more, given the ingenuity of those who devise these systems of child abuse), was to march us in single file out into the hall.  It was colder there, the floor gleaming.  We’d curl up against the brown lockers on our knees, their metal doors cool against our foreheads, our hands clasped over our heads as if to shield us from something.  We weren’t allowed to look up, but I wondered, if I looked up would I see the acoustic tiles from the ceiling come crumbling down at me.  Would I see the light burning through.  Would I feel anything.

What I feel, now that Donald Trump and John Bolton have announced their intention to withdraw from the intermediate range nuclear forces treaty, one of the most successful arms control agreements in history, thus rekindling the arms race that blighted my childhood, is a level of loathing and anger that I never have experienced before for any politician.  It goes way beyond “may they rot in hell,” although that is included.  Am I alone in this?  I don’t like to say that anything is intolerable or unbearable, because after all, if you can say something was intolerable or unbearable, you tolerated it, you bore it.  But the thought of a world plunged back into that darkness for my children, for their children, is close to intolerable.  It is close to unbearable.  I know that millions of people of my generation shared my experience.  Am I alone in feeling that the wound, which I had thought long healed, has been ripped freshly open, and in feeling utter revulsion for those who would do it?

If I am not alone, this November may our collective anger at what we had to endure, at what he would have our children endure, scorch Donald Trump to the ground, reduce him to ash floating on the uncaring breeze, and erase him from any further ability to inflict his evil upon the world.

Blowing in the wind

September 30th, 2018

Oh my god, they are ugly, these aging, wealthy, powerful, white men: contorting their little faces, stomping their little feet, and flailing their little arms in synchronized tantrum because their hollow sham of a pretense of a proceeding, after all their efforts to put a good face on it, was not going their way; exploding with rage from their lack of the elementary self discipline to sit quietly and to allow the woman they had hired to continue to do the good job she was doing of what they had hired her for, because what they really wanted (destruction of another woman) was not the job they had hired her to do (elicit the truth); frothing at the mouth about vast nebulous conspiracies to hijack their sham and turn it to other ends, conspiracies to destroy them personally, conspiracies to use them as a proxy for avenging ancient grievances unrelated to the matter at hand; sniveling and beating their little chests and demanding our pity and demanding that we believe them and no one else because they had worked so hard and they had done some good and they have a right to our belief; denying denying denying; spinning spinning spinning; abandoning any pretense of respectful listening except to proclaim repeatedly, loudly and angrily that they had listened respectfully (in the face of their refusal to listen even to their own lawyer); yelling at and talking over and rudely mocking and refusing to answer those who dared to question them, at the same time complaining of being mistreated; lying openly and contemptuously about matters large and small.  These, the flower of our nation, the representatives of our people, the honorable members of our great deliberative body; these excrescences of a too-long dominant, too-slowly fading demographic.  Another generation will take them to the rubbish heap of history, but until then, they stink.

For the record

September 26th, 2018

Under the heading of “boys will be boys”, of which we are hearing so much lately from the ostrich wing of the Republican party, I would like to offer my testimony. In my teenage years, I did my share of stupid, impulsive things.  I drank and took drugs, often at the same time.  I behaved towards a few young women in ways of which I now feel ashamed.  But I never:

a) turned up the music, pinned a girl to the bed, put my hand over her mouth, and attempted to remove her clothing despite her resistance;

b) stuck my penis in a drunk girl’s face when she wasn’t expecting it, or, for that matter, even when she might have expected it;

c) or did anything remotely like either of the above;

d) or knew anyone who did.

Frankly, the idea that such actions may be considered in the light of normal boyhood indiscretions is offensive, and says more about the morally and spiritually impoverished milieu of the people who believe it, than about the nature of masculine youth in America.  We absorb a lot of toxic ideas and behavioral models when we are kids, no doubt about it.  But the notion that acts of sexual assault and rape are a normal part of the personal behavioral experience of young American males is false and obnoxious.  The perpetrators exist, but they are a small minority.  Their behavior is a distorted reflection of the mainstream, not normative for it.  Part of the tragically disjunctive experience of men and women growing up in this society is that the worst aspects of oppression impact a disproportionately large number of women – most of them – while being committed by a disproportionately small number of men.  I do not mean to excuse complicity with the evil, which is a thing most men do, in fact, have to answer for.  But there is a morally significant difference between passive complicity and overt action.

That said, if Kavanaugh did what he is alleged to have done, I am not sure that automatically disqualifies him.  The allegations concern things that happened decades ago, and there does not seem to be a pattern continuing into the present.  Maybe he no longer is that person.  No: if he did what he is alleged to have done, he is disqualified not by the acts he committed, but by his denial of them.  Do we want to hire a judge who lies to get the job?  Of course not!

This is a job interview, not a court proceeding.  We are not dealing with burdens and standards of proof, we are dealing with the decision whether to hire a person for a lifetime appointment as the nation’s highest authority on what the law says.  So perform a thought experiment.  Say you’re hiring a babysitter.  You’ve got a nice middle aged person who wants the job, a little strict perhaps, maybe with some ideas that don’t jibe entirely with yours about child-rearing, but overall seemingly someone who likes kids and could do the job.  (I’m purposely slanting this in favor of the candidate.)  You check this person’s references, most of which are glowing; but then you hear from someone not listed on the candidate’s resume, a person by all appearances disinterested and credible, who hired them as a babysitter many years ago and came home from the movies to discover bruises on the kid.  You confront the candidate with this.  The candidate denies it.  I don’t know about you, but I’d thank them for their time and look to hire somebody else.  Why take a chance, if you don’t have to?

 

Gag me with a Grassley

September 19th, 2018

A few thoughts on the farce now playing out around the allegations against Brett Kavanaugh:

It’s a job interview, not a prosecution.  Regardless whether there’s enough evidence to convict, would you hire the guy against whom there is a credible allegation that he assaulted somebody sexually a long time ago, or would you thank him for applying and then broaden the search?

Is it possible that there exists a professionally qualified Republican conservative (those being the minimum requirements for an applicant, at present) who is not subject to credible accusations of serious wrong-doing?

What is the point of setting up a he-said/she-said confrontation between Kavanaugh and his accuser, as quickly as possible, without any effort to investigate independently or to hear from other witnesses?

All of the above questions are entirely beside the point, since the sole objective is to appoint someone hostile to Roe v. Wade before the midterms.

At last Clarence Thomas will have a kindred spirit sitting beside him on the bench.

Xenophobia: or, your tax dollars at work

September 12th, 2018

The Trump administration’s transfer of $10,000,000 from FEMA to ICE, at a time when FEMA still is struggling to catch up with last year’s disaster in Puerto Rico and Hurricane Florence is bearing down upon the Carolinas, brings to mind the Hitler administration’s prioritization of using rolling stock to transport prisoners to concentration camps at a time when its army was in desperate need of trains.

Who will rid me of this troublesome president?

September 11th, 2018

There is only one question that needs to be answered about any candidate for federal office this year. I hasten to add that in the past I have approached voting as the result of a multifactorial analysis including the candidates’ personalities and histories, their views on a variety of issues, their qualities of character, the various and often conflicting exigencies of the historical moment, and so on.  I’ve voted for Democrats, Republicans, Progressives, and Independents. Now, however it boils down to one thing. Who will rid me of this troublesome president?

The simplicity of the choice is due to the radical evil Trump and his GOP represent.  I could go on about threats to democracy, the rule of law, constitutional order, humane values, blah blah blah.  It includes but goes beyond all these things.  It requires no extensive reasoning or great historical knowledge to arrive at this conclusion.  Consider the following recent news items, and connect the dots. (1) The United Nations Secretary General says that continued dependence on fossil fuels is a direct existential threat to our species.  (2) The torrential rains that flooded Houston from Hurricane Harvey were linked to climate change.  (3) Rainier, slower moving storms like Harvey and Florence, about to devastate the Carolinas, are examples of the new normal.  (4) Trump’s EPA is preparing to make it significantly easier for energy companies intentionally to release methane, one of the most powerful greenhouse gases, into the atmosphere in the course of their drilling operations.

Whereas in the Sixties we called the military industrial complex a death machine aimed at soldiers and certain foreign nationals, Trump’s administration is a death machine aimed at everyone.  Republicans have proven that they don’t care.  Mueller may accuse, but he won’t indict and he can’t remove.  Third parties are mostly chimerical at the best of times and are almost entirely irrelevant to the present moment, unless you are absolutely sure your “alternative” hero really is another Angus King or Bernie Sanders.  Only by putting Democrats in control of the House of Representatives and, one hopes, the Senate, creating at least the possibility of impeachment or a forced resignation, do we have any chance of stopping or at least slowing down the death machine before 2020.  If, in addition to being an American citizen, you are a human being, you should vote for whatever Democrats are running for the House and Senate in your district this fall.  There are no other, more important issues.  A difference of even a year in the downfall of this regime could avoid incalculable death and destruction.

Sanctions

August 7th, 2018

Listening to the radio while doing my morning exercises, I just heard an apologist for Trump describe his reimposition of sanctions on Iran as part of a reasonably coherent strategy to achieve regime change there by the means of economic pressure.  He went on to characterize this as a program to promote democracy.  To me, it was astonishing that nobody immediately called bullshit on this.  Yes, I am incurably naive and such things do astonish me.  But then again, this was NPR, where it is an article of journalistic faith never to challenge a right wing bullshitter.   How it promotes democracy to attempt, by use of our economic force majeure, to immiserate the people of a foreign, sovereign nation in the hopes that they will rise up and overthrow their government, was not explained.  Nor was it explained why it is considered reasonable to expect that such people, driven by poverty and oppression to destroy forcibly the existing governmental institutions of their country, would replace what they had jettisoned with something more Jeffersonian.  The man promoting this arrogant idiocy, in  almost complete albeit probably willful ignorance of history (Libya? France?  Russia?  China? Germany? etc.), spoke with great confidence, fluency, and truthiness.  Judging by recent polls showing GOP support for der Gropenfuhrer holding firm, not to mention his continuing enthusiastic reception by the Republican faithful at campaign rallies, there is no shortage of American Barnaby Rudges who can be fooled by this kind of thing.  It is a salutary reminder that even if the President were to choke on a pretzel, he is only the gross tip of a sizeable iceberg.

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.