Posts Tagged ‘due process’

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.