Kids say the darnedest things

I remember watching Art Linkletter, RIP,  as a little kid. I was too young to understand what the adults were talking about, but enjoyed the segment where he talked to children. The segment was dubbed, “Kids say the darrndest things.” As a child myself, I took competitive joy in watching little kids say crazy, embarrassing things. “Boy if I was sitting on one of those stools,” I thought, “I’d never say anything that stupid.”

Michelle Obama was unexpectedly thrust into Art Linkletter mode two weeks ago when she and the president of Mexico’s wife visited a public school in Silver Spring, Maryland. A little girl told the first lady that her mother said that Barrack Obama was throwing out undocumented people. “My mom… she says that Barack Obama is taking everybody away that doesn’t have papers.” (more…)

An interesting phenomenon in appellate decisions is that a court decision, often a higher court, establishes a certain principle of law of general application and then the lower courts are “stuck” applying this principle despite the apparent illogic of absurdity of its application. Because lower courts must adhere to the rulings of the higher court, unless the lower court can cleverly distinguish its situation from the decision of the higher court, the lower court is compelled to issue a decision that to the vast majority that are not sensitive to these things, seems unfair.

One decision that has taken courts down a path of despair is a 1975 Supreme Court decision, Reid v. INS.  In Reid, a husband and wife entered the United States by (knowingly) falsely claiming they were United States citizens. Immigration officials found this out and initiated proceedings to deport them. The couple, as a defense, sought a waiver of deportability for those who enter the United States fraudulently. The law allows for a waiver based on family ties to someone who may have entered the United States years earlier by fraud, but now is established here and the harm to himself and his family outweighs the seriousness of the fraud. However, immigration officials did not charge the Reids with deportability for entering by fraud. Rather, they charged the Reids with deportability for entering the United States without inspection. The theory was that when a person comes to a border and says he is a United States citizen, he is not carefully inspected, while a person who comes and says he is not a United States citizen is carefully inspected to make sure his visa or other authorization to enter is in order and he is not subject to inadmissibility for criminal conduct, other unlawful conduct, or immigration violations. The Supreme Court concluded that the Reids could not ask for a fraud waiver because they were not deportable for fraud, but rather for entering without inspection. They thus had no relief from deportation – even though it was precisely the fraud that was the “cause” of having avoided inspection. The Supreme Court, in a decision written by the Justice Rehnquist, was concerned that an alien could transform any immigration violation into a fraud – “I overstayed my visa and am deportable but intended to when I entered, so I entered with fraudulent intent and therefore deserve a waiver.” The decision certainly nipped that theory in the bud. (more…)

I am often amazed how diligent the judges of the Ninth Circuit Court of Appeals are in handling immigration cases. Though I often lament about how they got it wrong, failing to understand the bigger immigration context of their decision (like in the advance parole and visa waiver decisions discussed in the past), still this is a rather arcane and unsexy area of law for an appellate judge to have to be spending so much mental energy. (more…)

The San Diego City Counsel voted yesterday 7-1 for a resolution to repeal Arizona’s new “immigration law.” The Arizona law, as amended, allows for questioning of immigration status only if stopping, detaining or arresting a person while enforcing another law. The earlier law had referred to a “contact” with police. While waxing indignant that police should not be “enforcing” immigration law in Arizona, the San Diego City Counsel ignores what the police do in San Diego routinely – handling over aliens to immigration authorities whom they encounter while enforcing other laws. (more…)