Category: Immigration


Posner on Immigration Courts and Judges

Picswiss_BE-98-17_Biel-_Gerechtigkeitsbrunnen_%28Burgplatz%29.jpgJudge Posner has previously voiced his displeasure with immigration judges “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” This week he has re-stated this view in a speech to the Chicago Bar Association. Judge Posner has called the system “inadequate.” Per the National Law Journal, Posner identified several areas of concern

–better training in international law

–reliance on the State Department for information about international issues

–a need for clinics to improve the immigration bar

–expanded membership of the Board of Immigration Appeals

–conferences so that judges can compare experiences and improve the system

–barriers to understanding the applicant including a lack of familiarity with body language and the need for interpreters

These problem add up to Judge Posner’s conclusion that “personal values and biases” drive the decisions and that “perfunctory review” is often all that occurs.

Despite the problems specific to immigration judges, the basic question of judges relying on instinct seems to haunt all judges. In other words, Judge Psoner may be onto a problem that has both subject matter sources and has its roots in the way judges make decisions in general. There is some good literature on the general question of judicial decision making.

One of the fun parts of my job is co-chairing my school’s colloquium committee which means inviting folks to share their work. Last week Chris Guthrie of Vanderbilt Law School presented his work “Inside the Trial Judges Mind.” The work questions whether formalist or realist understandings of decision making properly explain judging. In their stead, the paper offers an “’intuitive-override’ model of judging. According to this model of judicial behavior, judges generally make intuitive decisions, but sometimes override their intuitive responses with deliberation.” It was a fascinating talk and the work opens many questions about how our system of justice works. For those wishing to read more of Chris’s work here is his SSRN page. The piece that may be of most interest is Blinking on the Bench: How Judges Decide Cases co-authored with Jeffrey J. Rachlinski and Andrew J. Wistrich. The article just came out in the Cornell Law Review.

Image: WikiCommons

Author: Roland Zumbühl (Picswiss), Arlesheim

License: GNU Free Documentation License, Version 1.2


Sartorial Exclusion

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Top hat1.JPGSunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

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The Sun Never Sets on the British . . . Emigrants

The Telegraph reports on a recent OECD study finding that record numbers of skilled professionals are fleeing Britain for more hospitable lands, including the United States, Canada, Australia, New Zealand, France, and Spain. According to the report, the United Kingdom is said to have the worst “brain drain” problem of any nation, having lost one in ten of its most highly qualified professionals. In 2006, 207,000 citizens left the United Kingdom — more than one every three minutes. Only Mexico has had more emigrants in recent years. Apparently free universal health care is not enough to keep skilled Britons from leaving; high house prices and taxes and bad weather are the most commonly cited reasons for leaving. What’s saving Britain from a severe shortage of skilled labor? Immigrants, of course — over a million skilled immigrants have arrived on British shores to take the place of the 1.1 million Britons who have left.


Using Immigration Law to Prosecute Terrorism Charges: Double Jeopardy or Fair Play?

875413_balance.jpgThe case of Lyglenson Lemorin, a lawful permanent resident from Haiti facing terrorism charges in immigration court, raises interesting questions about the use of immigration law to prosecute terrorism cases. This phenomenon, known less-than-affectionately as “Crimmigration“, has been used to remove (aka deport) immigrants convicted of a variety of crimes after they have served prison time. But in what one immigration official calls the first case of its kind, Mr. Lemorin was acquitted of terrorism charges by a federal jury in Miami in December, yet faces nearly identical “material support” conspiracy offenses in immigration court this week.

Of course, the standard of proof for criminal charges in federal court is beyond a reasonable doubt — but not in immigration court; rather, the government must meet only the clear and convincing evidence standard in establishing that Lemorin conspired to engage in terrorist activity. In addition, he loses not only constitutional protections awarded to criminal suspects as well as the protections of the Federal Rules of Criminal Procedure, but the Federal Rules of Civil Procedure and the Federal Rules of Evidence don’t even apply in immigration court. One might say that the cards are stacked in favor of the government. Instead of a jury, Mr. Lemorin will be tried by an immigration judge, the perils of which are outlined in my recent article “Refugee Roulette.”

This particular case — lodged against a lawful permanent resident, a married father of two whose family now struggles to support itself — has drawn criticism not only from immigrants’ rights lawyers but also from Prof. David Martin, the former general counsel of the administrative agency formerly known as INS (now the Department of Homeland Security). Martin sees potential unfairness in the authorities’ ability to essentially try Lemorin twice for the same crime. But some might say that, like using tax laws to prosecute the Mafia, the immigration laws are fair game for ferreting out potential terrorists — after all, all’s fair in love and war. Isn’t it?


For Whom Would the Undocumented Vote?

A big thank-you to Dave Hoffman and the Concurring Opinions bloggers for inviting me for a guest stint. I’m looking forward to being a regular contributor for the next month, and to the feedback from blog readers! Unlike Paul, I have decided to blog today in one of my areas of substantive interest — immigration — but promise to be more adventurous next time! Now on to the substance:

illegal%20immigrant%20sign,jpg.jpgDuring the longest primary season on record, we’ve had plenty of opportunities to learn of the voting preferences of American women (favored Obama in Iowa but Clinton in New Hampshire), African-Americans (turned out in record numbers for Obama in South Carolina), Latinos (favored Clinton in Florida and Nevada), independent voters (inclined towards Obama and McCain), and even the under-30 vote (generally favor Obama). But the pollsters have not explored the presidential preferences of a harder-to-locate group, estimated at 12 million individuals, who live and work among us — undocumented immigrants. Of course, the undocumented can’t vote, so it’s no surprise that the campaigns and polling organizations have not expended their resources to investigate the preferences of this group. But I posit that if we take Rawls’ Theory of Justice seriously, particularly the notion that society should be structured so as to balance social and economic inequalities such that they provide the greatest benefit to the least-advantaged members of society, we might want to think about the opinions that the undocumented might express in this political process. Moreover, the rallies and marches in response to immigration reform proposals last spring suggest that the undocumented population has some political voice of its own, and that at least some documented immigrants may represent this voice.

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Scenes from a Lawyer’s Life

The Arts Section in today’s New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York. The theme is Rivera’s stepping out from behind the overwhelming interest in his third wife, Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife’s grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo. (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.) Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files. One truly appreciates the historian’s and the biographer’s art of distilling the story from the data when looking at records like these. The documents are tantalizing. For example, Nathan was a bachelor until 1946, when he married Alene’s grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan’s being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task). I realize now it’s entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of “undesirables,” and espoused public positions to which the F.B.I. director of long memory must have objected.

As to his practice, I’m just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: “They tell me that I’m a Communist. . .It so happens that I’m a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow’s advice, refuse to take Moscow’s dictation. There are other differences, such as our belief that the worker’s solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow’s theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units.” (The Communist Party (Opposition), or the Communist Party (Majority Group) as it was originally called, was a splinter group from the main Communist Party USA, organized by Jay Lovestone. Lovestone shows up here; he visited Detroit, and met with Nathan and Bojer.)

The American Civil Liberties Union was interested in intervening on Bojer’s behalf. On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: “The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party.” Nathan met with Bojer in the Wayne County jail, where Bojer, “a very affable and highly cultured young man,” advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an “East bound deportation party” on December 29, 1932.

As to Nathan’s political views, here’s an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation “drives” and “spectacular raids” then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city. Whose parents had been aliens.

(Cross-posted at Legal Profession Blog.)

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Don’t Apply for Asylum in Atlanta

That’s the advice savvy immigration lawyers will probably be giving applicants after the publication of a new analysis of 140,000 immigration decisions. The Atlanta office granted asylum to only 12% of applicants, compared to a national average of 40%. Intracourt disparities were also astonishing:

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

The study reminds me of a fascinating documentary entitled “A Well-Founded Fear,” which looks inside one immigration office and records cases presented to staff there. My main impression of the process (or lack thereof) was that the judges were often tasked with a near-impossible job of figuring out whether a given applicant was “credible” on the basis of a very informal “hearing”–basically, just listening to their story and asking questions designed to provoke inconsistent statements. Only a thick paper file documenting trauma or home country conditions had the potential to deter a snap judgment of “not credible.” The disparity among judges is also quickly in evidence–one appears to be a classic “bleeding heart,” but she is easily outnumbered by others who appear ready to dismiss just about any narrative of persecution as unbelievable.

Will Article III courts intervene to supervise this “agency under stress“? Early indications are grim. Consider this language from a First Circuit opinion in Albathani v. U.S.:

the Board member who denied Albathani’s appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a nine-hour day. . . . We are not willing, however . . . to infer from these numbers alone that the required review is not taking place. . . . [W]orkload management devices . . . . do not, either alone or in combination with caseload statistics, establish that the required review is not taking place.

Which leads me to wonder–would one minute of review be enough? Fifteen seconds? When would such nanoreview cease being a “matter committed to agency discretion,” and threaten our sense of the rule of law?



As noted earlier, Lou Dobbs is upset that more media outlets aren’t using the term “illegal alien,” instead often opting for the term “undocumented immigrant.” Dobbs suggests a conspiracy by the media. But the fact is that critics of the media don’t consistently use “illegal alien,” either. The term often gets shortened to merely “illegals.” (See, e.g., Wash Times, “Bush amnesty blamed for rise in illegals“; Wash Times, “Senate illegals bill near complete“; WorldNetDaily, “Arizona county helping illegals, critic charges“; KTAR, “Employer sanctions for hiring illegals stuck in Senate“; and the lovely article “Illegals go home” that has run in various outlets.)

Supporters of this term defend its use, pointing out that it carries some degree of descriptive accuracy. People labeled as “illegals” have indeed violated a law; therefore, suggest users, such people may accurately be called illegals. Is this reasonable?

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The evils of immigration

Reader Marc B points out that a Utah state legislator has apparently identified the culprit behind recent illegal immigration problems. The source of the problem? Satan.

Don Larsen, a district chairman, has submitted a resolution equating illegal immigration to “Satan’s plan to destroy the U.S. by stealth invasion” for debate at Saturday’s Utah County Republican Party Convention. Referring to a plan by the devil for a “New World Order … as predicted in the Scriptures,” the resolution calls for the Utah County Republican Party to support “closing the national borders to illegal immigration to prevent the destruction of the U.S. by stealth invasion.”

The resolution is apparently having trouble getting much support in the legislature. Now some might blame politics, or the somewhat unusual nature of the resolution — but I kinda wonder if Satan’s not behind that, too. (It would make sense, no?)

Fortunately, Rep. Larsen and the other legislators will have the chance to ask Satan whether or not he’s really behind illegal immigration. Luck would have it that Old Scratch is visiting town to speak at a local university.