Sheriff Joe, the king of Arizona law enforcement idiots, has found himself on the wrong end of a lawsuit – yet again. This time, the U.S. Justice Department sued him for failing to turn over documents in a probe of whether his hard-nosed tactics against undocumented immigrants violated their civil rights. I can already tell that there are some folks out there that couldn’t give a darn toot about the civil rights of undocumented immigrants – but that’s not the issue here. The issue is that the federal government asked a state agency as part of a legitimate investigation to turn over evidence, yet that state agency refused to cooperate. Such vigilante behavior (yes, vigilante) is completely unacceptable in a nation of laws, and the Justice Department is right to come down on the Maricopa County Sheriff’s Department like a ton of adobe bricks. Check out this article in the L.A. Times for more information about the Sheriff Arpaio’s latest legal woes.
The 9th Circuit Court of Appeals issued a truly incredible decision last week. In Kazarian v. USCIS, the Court held that the Immigration Service cannot unilateral create additional evidentiary requirements for first-preference (EB-1) immigrant petitions. In other words, the 9th Circuit told USCIS – “don’t make up law on your own.” This might sound like a no-brainer, but USCIS has been doing just that sort of do-it-yourself lawmaking for years. I don’t know whether it’s a conscious effort on USCIS’s part to restrict certain visa categories, whether it’s a bona fide interpretation of a particular evidentiary standard, or whether something even more nefarious (or more innocuous?) is at work here - but whatever the reason is, USCIS’s lawmaking efforts are over for the time being. This case is a tremendous victory for all my immigration attorney brothers and sisters out there who are sick and tired of USCIS blatantly disregarding the law; in that sense, the Kazarian case represents a much-needed – and long-overdue – wake-up call from the 9th Circuit.
I saw this in an opinion published today by the 9th Circuit Court of Appeals – Ocegueda Nunez v. Holder – regarding the age-old question: what exactly is “a crime involving moral turpitude?”
“Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.”
Nice. The 9th Circuit has no clue what moral turpitude is. Judge Reinhardt goes on to write that “[w]e have previously discussed at some length the inherent ambiguity of the phrase “moral turpitude” and the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not. See, e.g., Marmolejo-Campos, 558 F.3d at 909 (” ‘[M]oral turpitude’ is perhaps the quintessential example of an ambiguous phrase.”); id. at 921(Berzon, J., dissenting) (“[T]he BIA’s precedential case law regarding the meaning of the phrase ‘crime involving moral turpitude’ . . . is a mess of conflicting authority.”)…”
Wow – absolutely NO ONE knows how to define moral turpitude. The Court concludes that the only real way to decide whether a crime involves moral turpitude is to compare it to crimes that have already been found to involve turpitudinous conduct – and yes, that really is a word. With this as its test, the Court held that California Penal Code § 314, which criminalizes indecent exposure, is not categorically a crime involving moral turpitude because some of the conduct it punishes might lie outside the generic definition of moral turpitude.
Aside from providing some nice quotations, this case nicely illustrates just how big a headache statutory language can cause the legal system. This ambiguity could have been intentional – an example of Congress having something in mind, but not knowing exactly how to define it, and dumping the problem on the courts instead – but it could just as likely have been poor legislating on the part of whoever came up with “moral turpitude” as the definition for “bad crimes” in immigration law. I would have Congress scrap moral turpitude as a legal standard altogether, but is there even another way to define the class of crimes Congress intended to identify in this situation? Moral turpitude might unfortunately be as good as it gets. I guess that not every concept in law corresponds with a clear, unambiguous definition – and that we have to resign ourselves sometimes to sorting out those “messes of conflicting authority” Judge Reinhardt was talking about.
The United States Supreme Court ruled in favor of an Albanian immigrant yesterday when it held that federal courts have the ability to review decisions on Motions to Reopen removal cases. The issue in Kucana v. Holder was whether the Attorney General could proscribe federal court review of Motions to Reopen – more specifically, whether this divestment fell within a provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that provides that “no court will have jurisdiction to review any action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” In other words, did IIRIRA give the Attorney General the authority to cut off federal review of these cases, or did the Attorney General exceed Congress’s grant of authority by doing so? When I saw that Justice Ginsburgh delivered the Court’s opinion, I pretty much knew that it was that latter. The Court held that the Attorney General could only proscribe judicial review for decisions that IIRIRA specifically states are discretionary, and not for decisions that the Attorney General makes discretionary via Department of Justice regulations. The Court used the plain language of the statute to arrive at its conclusion, coupled with a general rule to avoid cutting off judicial review unless there is clear Congressional intent to do so.
I think that this case was a real no-brainer - and the Justices apparently did too, since their decision was essentially unanimous (only Justice Alito wrote a separate opinion, and he concurred in the judgment). The Department of Justice cannot simply cut off review of an entire class of petitions simply because it says that the decision is discretionary and therefore IIRIRA applies. There can be no meaningful due process if one branch of the government can make decisions final whenever it wants, especially when Congress – which actually is charged with making laws – has already spelled out that branch’s authority on the matter. This case should be a reminder to the Departments of Justice and Homeland Security that its regulations need to be supported by the laws that Congress passes, and that their discretion actually does have limits. For a link to the case, click here.
An article in the New York Times today described how federal immigration prosecutions are at an all-time high under President Obama. The article takes pains to point out that the Bush Administration is responsible for increasing immigration-related prosecutions, but the Obama Administration has done nothing to change that trajectory. According to a report that Syracuse University’s excellent Transactional Records Access Clearinghouse (TRAC) released, there has been a 16% jump in immigration prosecutions since last year, compared to a 9% jump in federal criminal prosecutions overall. Immigration-related case make up a whopping 50% of all federal prosecutions, a staggering number considering the many areas of criminal activity the federal government regulates.
This wouldn’t be such big news if there was really such a high level of immigration-related crime. And don’t get me wrong – there is a staggering amount of crime related to many aspects of immigration: deported aliens re-entering the United States, alien smugglers, immigration fraud, and whole lot more. There is no way, however, that immigration accounts for half of all the federal crimes committed in 2009. This has been a year in which illegal border crossings decreased dramatically as the economy worsened. It’s also been a year in which crime has fallen overall: violent crimes dropped 4.4% from last year, murder dropped 10%, and property-related crimes dropped 6.1%. The federal government’s myopic focus on immigration skews the public’s perception of immigration issues, prevents the Department of Justice from combatting different types of crimes and devoting its resources accordingly, and smacks of a DOJ intent on keeping busy despite a sharp drop in the crime rate.
I really do want our government to fight crime. I don’t like criminals, and I like criminals that take advantage of immigrants and/or make honest immigrants look bad even less. I also believe that the federal government needs to devote the majority of its resources to pursuing and prosecuting violent and dangerous criminals, not people crossing the southern border to reunite with family members after a deportation. There is simply no reason for immigration cases to compose 50% of federal prosecutions when there are so many other deserving criminals out there waiting to be locked up.
The 9th Circuit Court of Appeals decided the case Hamazaspyan v. Holder today, holding that an in-absentia removal order should be rescinded where neither the respondent nor his counsel of record received the hearing notice. The 9th Circuit’s decision is not as noteworthy as the fact that they had to hear this appeal in the first place. I don’t think it’s a huge stretch from (a) no one received proper notice in this case to (b) there has a been a due process violation. There’s a great deal of statutory intepretation and legalese between points (a) and (b), but this specific legal issue seems to be one of fundamental fairness in deportation proceedings, in which the case the respondent should get the benefit of the doubt. In my opinion, the bigger issue here is that the Federal Courts of Appeals are choking on meritorious appeals that should never have had to be filed in the first place. Immigration Judges have a wide degree of discretion and should use it to err on the side of the alien more often, if for no other reason than to spare the Courts of Appeal from the veritable flood of appeals they have to hear every year. There’s no harm ruling for the respondent when there’s an arguable basis to do so, especially if it means greater liquidity in the appeals process overall.
The Senate confirmed Sonia Sotomayor yesterday as the 111th Justice of the United States Supreme Court. Judge Sotomayor – soon to be Justice Sotomayor – will become the first Latino to serve on the High Court, a truly important day for anyone that cares about equality and diversity.
One would think that, as a Latina, Justice Sotomayor will have a unique take on immigrants’ legal issues. Now, far be it from me to pre-judge anyone’s worldview based on such an inaccurate predictor as ethnicity, but still – as a very successful and now very powerful person of Latin heritage, shouldn’t she have a special place in heart for all those less successful and less powerful people of Latin heritage struggling to create lives for themselves in this country?
The answer appears to be “no,” at least according to an article in the Washington Post, which itself quotes research from an article published in the Stanford Law Review. On June 9, 2009, Amy Goldstein reported that Sotomayor is within the “judicial mainstream” on immigration, meaning that she ruled for the government over the foreign national, and vice versa, at approximately the same rate as other judges on the 2nd Circuit Court of Appeals, of which she was a member until yesterday. Overall, she has sided with immigrants in asylum cases 17 percent of the time – 2 percentage points about the national average, at least for 2004 and 2005, the two years studied.
Based on this article, which admittedly studies only a small portion of Judge Sotomayor’s judicial career, it looks as if Justice Sotomayor will not be a tremendous friend to immigrants, although she probably won’t be an enemy either. If she’s within the 2nd Circuit’s mainstream, and 2 percentage points above the national circuit court average, one has to really look to specific decisions to understand her thinking on immigration issues. I haven’t read any of Judge Sotomayor’s decisions yet, but given yesterday’s confirmation and the new role she’ll have in shaping the nation’s laws, I think I just might have to brush up on some 2nd Circuit case law.
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