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…)

The American Immigration Lawyers Association, AILA, is the venerable organization of immigration lawyers. Many, but probably not most, immigration lawyers belong. Its dues are high. The cost of its continuing legal education (CLE) programs (Continuing education is the requirement most state bars impose on lawyers to take classes each year as a requirement to keep their license.) is high, but less high than many of its competitor programs. For many immigration lawyers, it is their only credential other than their license. Lawyers advertise, “Member of AILA,” which they hope will be interpreted as, “I am an expert in immigration law,” but which really means, “I write a dues check every year.” (Actually, to spur membership, you can pay dues on an installment plan.) There are no qualifications to membership other than being allowed to practice law where you live. It is not like a state legal specialization program with tests and standards. The organization thrives on the confusion, just as the Better Business Bureau and Good Housekeeping thrive, or at least used to.

Lawyers join the organization for more than the ability to deceive potential clients. Some join for the camaraderie – meeting colleagues from their community at local meetings (though one of the local organization is “the South,” and another, “Texas,” land masses the size of Western Europe, hardly a local fraternity) and from around the country at national conferences. Some join for the CLE opportunities, though it seems that it is becoming more and more easy to pick up credits through other organizations, sometimes for a fraction of the cost. The quality of the CLE is also an issue. Slick books given out as part of the CLE have been replaced by memory sticks, which though lamentable as a research tool makes going home from a conference easier with the demise of the checked bag. Some join for the news and updates the organization provides through the Internet – the organization used to print information and mail it, but, like course books, austerity and changing media habits have all but eliminated hard copies of news. (I was on the editorial board of an AILA journal which the organization stopped publishing. No one ever informed me the journal was defunct or sent me a parting gift. It took me a year to figure it out myself and remove the position from my CV. The AILA website is strangely silent about the folding of a magazine.) While AILA’s news-disseminating function is extremely useful, the Internet is making it obsolete. Courts and other websites, like Findlaw, will post and email new court cases immediately. USCIS and other DHS organs as well as the Department of State and the Justice Department’s Executive Office for Immigration Review maintain websites where they post their new memos, rules, and regulations. Other aggregators, like ILW  and BIB  (How does Benders have such a good website and such a crummy journal, asks Lexis subscribers – the last one looked like a ransom note – and the publishing of its editors’ napkin scratches does it no credit) are getting the news AILA gets out at a premium price faster and for free. (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…)