The right to seek asylum from persecution is one of medieval law’s greatest contributions to modern international jurisprudence. Asylum is a good and necessary provision—one of those basic legal principles that can be traced back to the Greeks and Romans—and one of the essential benchmarks of a civilized, compassionate society.

The First Circuit releases an average of maybe about 2-3 immigration-related decisions per week, the majority of which relate to asylum proceedings. The merits of these asylum appeals vary pretty widely, but often trend toward the weaker end of the spectrum. After a quick read through the facts, you can acknowledge that there was probably a pretty good reason for the initial denial by the immigration judge (”IJ”), despite any meritorious appellate issues that may have been raised in the process.

But every few months, there’s an asylum appeal that can get you thinking a little more about the state of our system. About the kind of country we want to be, and how our immigration policies could better reflect that. Read more…

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“For preventing disorders, arising in several places within this jurisdiction by reason of some still observing such festivals as were superstitiously kept in other communities, to the great dishonor of God and offense of others: it is therefore ordered by this court and the authority thereof that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon any such account as aforesaid, every such person so offending shall pay for every such offence five shilling as a fine to the county.”

From the records of the General Court,
Massachusetts Bay Colony
May 11, 1659

massachusetts, stupid laws Massachusetts law, stupid laws

I was thinking about the late David Foster Wallace (hereinafter, “DFW”) today, which is to say that I was thinking about footnotes.

There are two rival schools of thought on the issue of footnotes, each of which may be summarized as follows:

1) Do or do not: there are no footnotes.¹

2) DFW: “Reality is fractured—at least the reality I live in.” ²

Read more…

1. If it wasn’t important enough to include in the main body of your argument, why are you shrinking it down to 8-point type and squeezing it in a single-spaced box at the bottom of the page? Nobody wants to read your stupid little thought droppings, Poindexter. [↩]
2. Footnotes, endnotes, and other marginalia are therefore “a way to speak to this essential fracturedness without creating a text that is unreadably fractured in and of itself.” [↩]

Writing Brief Writing, Footnotes

Now that you, the presumed reader of the foregoing “Idle and Disorderly Statute: Part I,” know more than you ever wanted to know about our embarrassment of a disorderly conduct statute, let us now move on to examine just how unconstitutional its least-constitutional subsection is.

Buried right in the middle of the steaming dog’s breakfast of old-timey criminality that is G.L.c. 272 Sec. 53 is the quaint classification of “persons who with offensive or disorderly acts or language accost and annoy members of the opposite sex.” Although not as widely employed as the “disorderly persons” provision, this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.

Read more…

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There’s a lot to love about being a licensed attorney in the Commonwealth. I’m proud to be  serving the oldest functioning written constitution in the world (the only state constitution to specifically mention “the duty of legislatures and magistrates… to cherish the interests of literature“!) , and to have taken an Attorney’s Oath which has remained unchanged since 1686. The Boston Massacre took place right outside one of my favorite T stations, where fellow Mass Bar member John Adams secured acquittals for six of the eight British soldiers involved only yards away.

But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD. Read more…

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As much as I love this paragraph as it is, it’s even more fun if you read it out in the stentorian brogue of Dr. Henry Jones:

“It is not the business of the courts to tell Congress what to do about public policy choices, but we are entitled to warn when the machinery that we help administer is breaking down.   The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct.   The regime is badly in need of an overhaul.”

Kim v. Gonzales, 468 F.3d 58 (1st. Cir. 2006)(emphasis added).

The First Circuit’s evident disenchantment with immigration appeals (may I offer you the paltry near-beer of a fresh half-pint of Justice Lite?) is understandable, especially given the explosion of BIA appeals they’ve had to endure since the passage of the 2002 reforms ostensibly designed to “streamline” the immigration appellate process. (I’m not up for putting together recent numbers tonight, but try here for a comprehensive look at the growing phenomenon as it stood a couple of years ago.) So this we-can’t-tell-you-to-do-something-about-this-but-please-seriously-guys-just-DO-SOMETHING kinda sentiment had to come out sometime.

To be fair, there’s no doubt what it was about this argument that had the First reaching for their revolvers:

“Kim’s first claim–that no crime of violence occurred even though Kim approached the victim with a cocked gun and shot him in the head as the victim fled–might seem frivolous to one not acquainted with immigration law…” (emphasis added)

Couldn’t have snarked it better myself. That last phrase tells you pretty much everything you need to know about what the First Circuit thinks about the current state of the Immigration and Nationality Act, the Executive Office of Immigration Review, the Board of Immigration Appeals, and the immigration bar at large.

But, more importantly, you read that argument correctly: The petitioner claimed that manslaughter should not constitute a “crime of violence” that should be classified as an “aggravated felony” for immigration purposes.

Again: Shooting a man in the back of the head did not constitute a felony in which there was a “substantial risk that physical force may be used… in the course of its commission.”

One more once? Intentional gun violence does not equal a “crime of violence.” Try saying it out loud out a few more times. Pace around the room a little, if that helps. I’ll be here.

Thing is, I have no doubt that counsel stood up and argued this with a straight face and a clean conscience. As the First has to acknowledge, it’s a good argument.

If you think this is all some kind of stupid joke, let me assure you that it is not—and to be the first to welcome you to Immigrationland! Double Scotch?

Of course, we can all agree right here that it’s a crazy argument, or at least that it sounds like one.

See, now, if you came up to me on the street and asked “Hey, would you say that manslaughter is a crime of violence?” my reasoned response would likely be a grunted affirmative just before I politely requested that you step away from my car with that squeegee–because, really, sorry man, but I’m really just all out of change–and rolled up the window and locked all my doors.

Yes, it sounds crazy that anyone would even try to litigate this issue. Squeegee crazy. But the truly insane takeaway is that this is a perfectly acceptable argument that actually passes the laugh test–thanks to some eminently-fixable vagaries of  both the relevant Rhode Island statute and the controlling federal law which defines “crimes of violence”–and that it may very well work next time around if it is properly raised earlier in the proceedings.

(Full disclosure: I recently asked the First Circuit if they might maybe like to consider an appeal which raised a similar question which kind of sounds about 75% as ridiculous as this one when you say it out loud, but I still stand by my argument in that one and will be happy to discuss its merits further with anyone who really wants to know. Plus, it’s not like we were talking about, y’know, manslaughter.)

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