Judge Harry Pregerson died on November 25, 2017.

Sunday, December 10th, 2017
By: Jonathan MontagJ.D.

Judge Harry Pregerson died on November 25, 2017. He was a friend to the alien. Judge Pregerson believed that the law was supposed to do good. He believed that justice and goodness were not separate concepts. He was probably wrong about this, which is why he dissented so much. His dissents (and his majority opinions, too), to me, were meaningful in two ways. First, it was satisfying to know there were powerful people who thought that being sensitive to the little guy was part of what a powerful person is supposed to do. At this point in the U.S. zeitgeist, this is heresy. Second, it was comforting to know when you read the law and it says to you that a process should go a certain way, but that the government reads it in a different, mean way, at least there was someone who read it your way.

As a modest tribute, here is some of the writing of Judge Pregerson in legal opinions which demonstrates his sensitivity to foreigners. He shows in his descriptions of people who are very different from him in ethnicity and circumstance, that he does not think of them as different – rather as people like him who drew short straws and hoped the government would help them out.

Sanchez v. Holder ( 2009)
How can we possibly say members of Congress intended that a man who married his hometown sweetheart, brought her here for a better life, worked hard for twenty-one years to provide for his three children, bought a home, attended church regularly, and cared for his ailing father is a man of bad moral character? Most would say, instead, that this is the story of a good man making every attempt for himself, his wife, and his three American citizen children to live the American dream. In our nation’s history, millions of immigrants have done the same. How can we condemn this behavior as “bad moral character” after honoring this dream since the birth of our nation?

Kazarian v. USCIS (2010)

I am pleased to concur in Judge Nelson’s opinion. I write separately, however, to emphasize the injustice perpetrated by our immigration laws and system in this case. Dr. Poghos Kazarian received his Ph.D. in the field of theoretical physics from Yerevan State University and, since arriving in the United States, has continued to research and teach in this challenging field. Starting around 2000, Dr. Kazarian participated in a research group headed by Dr. Kip Thorne at the California Institute of Technology. Dr. Thorne, among others, submitted a letter in support of Dr. Kazarian’s visa application. Dr. Kazarian volunteers his teaching services at Glendale Community College and has authored and published his own physics textbook. Dr. Kazarian has received strong words of praise from colleagues at Yerevan State University, Glendale Community College, and the California Institute of Technology. Dr. Kazarian’s contributions in the United States have been undoubtedly valuable. Forcing Dr. Kazarian to depart from our country would be undoubtedly wasteful and make one think that there is something haywire in our system. Although, as the opinion points out, Dr. Kazarian did not submit three of the types of evidence required for the “extraordinary visa,” he would have been an excellent candidate for an “exceptional ability” visa. Indeed, it was likely the error of an ineffective lawyer that led Kazarian to apply for the wrong visa in the first.

Nunez-Reyes v. Holder (2011)

America is a second-chance nation. Each year, thousands of people, some of them immigrants to this country, are caught up in our justice system by making the mistake of committing a minor drug offense. But Congress through the FFOA has seen fit to give those folks who commit the most minor drug offenses an opportunity “a second chance” to redeem themselves through rehabilitation, and thereafter walk a straight and narrow path to become productive members of society and a credit to their families. For some immigrants, including thousands of lawfully-admitted residents, this second chance also means being able to stay in the country with their families intact. The majority’s abandonment of our precedent today means that first-time minor drug offenders within our circuit who have fully complied with their state’s stringent rehabilitation programs, and who have had their minor convictions expunged by a state court judge, nonetheless will be subject to removal from the United States. For them, there will be no second chance. Thousands of families will be rendered asunder, and tens of thousands of American-born children will suffer the consequences. This harsh result, I submit, is repugnant to the values of kindness, compassion, and fundamental fairness. I therefore strongly dissent.

Arteaga-Godinez v. Sessions (2011)

I dissent. I wish to make two points concerning the unfairness of our immigration laws in the case before us.

First, this case reveals the inequity of our court’s cramped interpretation of 8 C.F.R. § 287.3(c). Under that regulation, noncitizens arrested without warrant by an immigration officer are required to receive Miranda-like advisals. However, our court has held that the right to receive those advisals attaches only after a Notice to Appear has been filed in an immigration court. See Samayoa-Martinez v. Holder, 558 F.3d 897, 901 (9th Cir. 2009). This rule was brought to bear on petitioners Rodolfo Arteaga-Godinez and Brenda Torres-Ponce, as they were detained and interrogated without advisals several days before the government filed a Notice to Appear. The statements obtained during those interrogations were then used against the petitioners in their removal proceedings.

In a case like this, the initial interrogation “which usually occurs before the government has filed a Notice to Appear” is often the only interrogation. If a detainee is not read his or her rights before that interrogation, the Miranda-like advisals from § 287.3(c) are rendered meaningless. After all, what is the use of warning a person that “any statement made may be used against him or her” when the government has already conducted its interrogation, filed a Notice to Appear, and often has no need to obtain any further incriminating statements? How can courts defend a practice that purports to offer noncitizens an important procedural right, yet only does so when that right has little, if any, value?

Second, this case is another example of the cruelty with which our immigration laws tear families apart. Rodolfo came to the United States in 1990 at age 9 and became a lawful permanent resident in 1994. Brenda came to the United States in 1990 at age 7 and became a lawful permanent resident in 2004. Rodolfo and Brenda were legally married in September 2001. At the time of their removal proceedings, the couple had a United States citizen child, and Brenda was pregnant. Rodolfo has consistently worked in construction and aspires to attend college to become a welder. Brenda has worked at a medical office and volunteers at her son’s school.

Rodolfo and Brenda maintain a close and strong bond with their family in the United States. Rodolfo’s mother, three of his brothers, and one sister are all permanent legal residents of the United States, and he has another sister who is a United States citizen. Brenda’s parents are both lawful permanent residents and her brother is a United States citizen. If Rodolfo and Brenda are removed, their children will either grow up in the United States without their parents or be compelled by circumstances beyond their control to move to a country they do not know. I decline to be a party to such an unkind and cruel result.

Parunakyan v. Boente (9th Cir., 2017)

I dissent. I believe that each of the purported inconsistencies cited by the IJ can be explained away or are so trivial that they should not be the basis for denying Parunakyan’s application.

In 1999, Mushegh Parunakyan fled political persecution in his native Armenia in search of a better life in the United States. After he obtained employment and a work visa, Parunakyan’s wife, Aida, and three young children, Levon, Shoghik, and Karolina, joined him in the U.S. In 2003, Parunakyan was not able to renew his work visa, and he promptly filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He was denied all relief and the government has, as of yet, declined to exercise prosecutorial discretion.

Parunakyan and his family have built a new life in the U.S. Now, for the second time in 17 years, the family will be uprooted and forced to start over. Parunakyan’s now-adult children, who are products of our education system and members of our community, will be sent to a country that is foreign to them. We should not deny them the opportunity to use their talents in the country they call home.

I decline to be a party to this unkind result. Posted December 10, 2017.


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