What is conservative about conservative jurists? I’m stumped.

Sunday, January 26th, 2014
By: Jonathan MontagJ.D.

I think it is generally agreed upon that Conservatives are in favor of small government and are distrustful of the government in general, so the smaller government is, the safer we all are. For example, regarding the Affordable Care Act, aka Obamacare, Conservative objections to the law seem to be that the government’s involvement in health care will result in harming the quality of healthcare in the United States. The difficulties in the roll out of the website for the selling of insurance policies – not the actual administration of any healthcare, but rather the market to sell health insurance – are proof to these naysayers that what the government touches it ruins. Of course, nothing is completely consistent. Conservatives are more pro-military and pro law and order, nothwithstanding that these activities are where the government exercises its power most directly and in the least nuanced way. Certainly, mining safety regulations show the intrusion of government in peoples’ lives, but not quite like a missile on one’s head or a billy club in one’s gut. For another example, Conservatives are split regarding the recent NSA/Snowden revelations, some most concerned about the power and reach of big government while others most concerned about the important role of NSA intelligence in national security. In the legal arena, one would also expect Conservative jurists to favor smaller government and skepticism towards government as an actor in society, yet, oddly, it is often Conservatives that champion the executive branch and favor deference to it while more moderate and liberal jurists show more skepticism toward government – at least in the immigration sphere. A recent case, Angov v. Holder, is illustrative.

In Angov, Mr. Angov provided the immigration court with subpoenas ordering Mr. Angov to appear at a Bulgarian police station in support of his asylum application. The government responded to this evidence with a letter from a State Department official stating that the State Department conducted an “overseas investigation” and that there were serious discrepancies in the subpoenas. The immigration judge and BIA both considered the letter and used it as the basis to deny asylum. The Court of Appeals had to decide whether the letter was a valid piece of evidence for the immigration judge to consider.  The court majority concluded that the letter was admissible as evidence and it was fair to consider it and deny asylum based on it.

The government’s view and the Ninth Circuit majority’s view was that the letter was admissible in immigration court where the standard for admitting evidence is whether it is fair too – the rules of evidence do not apply.  Mr. Angov’s position and a dissenting judge’s decision was that the letter consisted of unauthenticated hearsay statements from unidentified officials. There was no description of the methodology employed in the investigation, the qualifications of the investigators, or who was involved. The letter contained conclusory statements of fact, but no information about the identity and qualifications of the investigator; the objective and extent of the investigation; and the methods used to verify the information discovered. Thus, the immigration judge had a letter that was insufficiently detailed to permit a reviewing court to assess its reliability.

It is also worthy of note that five other circuits have considered similar cases and concluded that it was unfair to admit such letters.

So, applying the admittedly flawed definition of Conservative, who do you think is in favor of damning an asylum claim based on an unsworn letter on State Department stationery – one whose ideology is one of fearing an overstepping government or one more trusting of the good government can do? In this case it is Conservative justices that found the letter to be acceptable and the decisions of five other circuits and the dissenting judge in Angov  unacceptable. I may never understand why Conservative judges are so deferential to a central government they fear.

One separate observation. To my mind, the majority opinion made unfair ad hominem attacks on the attorney for Mr. Angov. First, the court called her “industrious.”  Unless describing a child or an ant, calling someone industrious is not a compliment. Second, the court noted that in another Bulgarian gypsy case, a Bulgarian recanted a false asylum claim. The court then noted that this other Bulgarian gypsy had the same lawyer as Mr. Angov. Why mention this unless somehow to give the impression that all Bulgarian gypsies are liars and their attorney must be complicit in some fraud scheme? This is my experience – people are often friends with people like them. Hausas will have hausa friends. Judges will have judge friends. A Bulgarian gypsy will have Bulgarian gypsy friends. Friends refer friends to dentists they were happy with, car mechanics they were happy with, and lawyers they were happy with. It is not at all uncommon for an immigration attorney to have several clients from some off-the-beaten path country as the first client refers his friends. I have had several clients from countries or regions of countries I could scarcely find on a map when the first one walked in. It is not impossible that some have pulled the wool over my eyes about the veracity of their cases. Does that mean that all the cases were frauds? No. Because I represented them all, does that mean that they are all frauds? No. Does it mean I am personally involved in fraud? No. That one Bulgarian gypsy admitted to making a false asylum claim says nothing about other Bulgarian gypsy asylum claims and, without more, says nothing about their common attorney. To imply otherwise is, well, as the court majority may have put it — chtuzpadik. Posted January 26, 2014.


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