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.

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