(1) Padilla is the single most significant stand that the Court has taken on behalf of the rights of non-citizens in my lifetime. It will provide a massive, widespread, immediate benefit for innumerable deserving¹ people, including many of my clients.

(2) Padilla has created the single most burdensome obligation that the Court has ever imposed upon the criminal defense bar.

(3) I have never had such thoroughly mixed reservations about a case that I should otherwise love so much.

Okay, deep breaths. Let’s break this down:

(1) What does Padilla mean for non-citizens?

As of today, any non-citizen present in the United States who enters a guilty plea to a criminal offense which will carry a “truly clear” consequence of future deportation (and, arguably, other immigration consequences) who is represented by counsel must be advised by their attorney of this consequence. In cases in which the immigration outcome is less certain (as it is in many, if not most criminal cases), counsel is obligated to advise that the plea may carry a risk of deportation. Non-citizens who have not been properly advised of these risks and/or consequence may be eligible to withdraw their pleas based upon ineffective assistance of counsel.²

(2) What does Padilla mean for criminal defense attorneys?

In a perfect world, the Supreme Court would have mailed courtesy copies of this decision to every criminal defense attorney in the United States firmly affixed to a very large bottle of J+B. Once the full implications of this ruling really start to sink in, most of them will be needing a stiff pour.

Simply put: Padilla requires the defense bar to learn a lot about federal immigration law, and very quickly. Imagine a baker who specializes in artisan breads arriving in the kitchen one morning to find that his boss has amended his job description to include the creation, production, and presentation of French pastries—with no concomitant training opportunities or salary increase. It’s kind of like that.

As of today, criminal defense attorneys throughout the United States are now required—upon pain of Constitutional ineffectiveness—to be conversant in all 33 definitions of the term “aggravated felony” outlined in the Immigration and Nationality Act as well as specific federal interpretations of each of these definitions and applications of these definitions to their local jurisdiction’s criminal statutes [PDF]. They will be expected to know exactly what does and does not constitute a “conviction”—a term which, under federal immigration law, is defined far more broadly than its equivalent in many states, including Massachusetts—and to have a working knowledge of how a client’s past criminal record may combine with the plea in question to raise a serious risk of deportation. They will be expected to have a working knowledge of “crimes of moral turpitude,” and to be able to articulate the legal and semantic differences between inadmissible and deportable offenses. They should probably learn a bit about mandatory detention [PDF] and the mechanics of immigration removal proceedings. This is, needless to say, a lot to learn at once, and replete with moving parts.

If you’ll allow me one more analogy: Padilla has drafted criminal attorneys to serve in the ranks of the armies of Immigrationland. It may not be what most of them signed up for, but they now have their marching orders and it seems that “theirs is not to make reply / theirs is not to question why.”

(3) What else is going on here?

Plenty. I’ll have more to say about this shortly, but here are a few immediate thoughts:

Padilla is kind of an interesting counterpoint to last year’s monumental Sixth Amendment ruling in Melendez-Diaz v. Massachusetts, in which the Court held that the government must introduce live supporting testimony from the chemist responsible for the analysis of a controlled substance before evidence of that substance may be used against a criminal defendant. Where Melendez-Diaz has caused massive systemic migraines for prosecutors and law enforcement, Padilla will now impose what I have to assume will be a comparable burden of time and resources upon the defense bar. In both cases, of course, the Court has been suspiciously quick to claim that these two sweeping, transformative decisions really won’t “commence [a] parade of horribles” (Melendez-Diaz) or “open the floodgates” (Padilla).

This is also the first time of which I’m aware that the Supreme Court has gone as far as to require defense counsel to be aware of a “collateral consequence” of a guilty plea. For as much as I hate slippery-slope arguments, there is a serious question here as to potential future challenges. What if a defendant isn’t informed that his conviction will leave him ineligible to receive federal student loan assistance? To serve in the U.S. military? To obtain a real estate license, or sit for a state bar exam? Do we need to provide each defendant with a checklist for these and every other possible potential future foreseeable consequence?

For as much as I wholeheartedly agree with Justice Stevens’s contention that the possibility of a lifetime of exile from the United States is perhaps the most serious collateral consequence imaginable, the fact remains that it is still a federal issue which is entirely separate from state-based criminal systems. Just a thought.

Again, though, these are all initial impressions within hours of first reading this decision. I’ll likely have more to say—including Massachusetts-specific analysis—once I’ve digested this thing a bit more, but my overall response (as an immigration practitioner, as least) is a feeling that justice has been done here. Despite my quibbling above, I fully agree with Justice Stevens:

Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

1. And, arguably, not-so-deserving…
2. Far more will likely be limned from this 18-page opinion in the coming years, but I think that this is a pretty fair summary of the basic holding.

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute…
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $475 more than the filing fee for an appeal to the Board of Immigration Appeals [PDF], $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF].
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy.

At the time that I wrote that, George W. Bush was still (technically, but not that anyone really noticed) President of the United States. Now that the Change-o-Meter has been set a-whirrin’, however, it looks like there is a real chance that Compean may be hitting the shredder shortly.

AILA has recently published incoming Attorney General Eric Holder’s responses to a number of written questions from Senator Orrin Hatch submitted in advance of his confirmation last week. When asked directly for his thoughts on Compean, Holder responded:

The Constitution guarantees due process of law to those who are the subjects of deportation proceeding. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General.

]]> http://www.mattcameronlaw.com/2009/02/holder-to-compost-compean/feed/ 0 http://www.mattcameronlaw.com/2009/01/closing-time-at-bush-doj-mukasey-drunkenly-gropes-for-car-keys-constitution/ http://www.mattcameronlaw.com/2009/01/closing-time-at-bush-doj-mukasey-drunkenly-gropes-for-car-keys-constitution/#comments Sat, 10 Jan 2009 23:58:28 +0000 Matt Cameron http://yourmassappeal.wordpress.com/?p=144 An obituary:

Matter of Lozada (April 3, 1988-January 7, 2009) was good law for 20 years, and became a working part of the immigration litigator’s lexicon during that time. Rarely used but often useful, Lozada ensured basic Constitutional due process protections to aliens in removal proceedings, and was often the only hope for immigrants who had been ill-served by attorneys they had retained (often at exorbitant rates) and trusted to guide them through the eldritch realms of Immigrationland. It was not perfect, but it was workable. It worked.

Lozada suffered an untimely death on Wednesday when outgoing U.S. Attorney General Michael Mukasey surprised it from behind, garotted it, injected it with a shot of Bush-era executive hubris, reanimated it, and imbued the resultant chimera with an unholy taste for human flesh. I give you: Compean-Bangaly-J-E-C, 24 I&N Dec. 710 (A.G. January 7, 2009).

Mass Appeal has obtained a fresh copy of Mukasey’s monster, and will now (with Mssrs. Justerini & Brooks assisting) perform an initial autopsy:

While it is always the Attorney General’s prerogative to step up and apply a firm thumb to the scales of justice at will, I am not aware of any other AG decision that has so broadly and comprehensively superceded and redefined an entire issue in immigration jurisprudence. With Wednesday’s ruling (hereinafter, Compean), Mukasey has unilaterally eliminated any possibility of a legal or Constitutional right to counsel in immigration proceedings and authoritatively replaced all attempts to construe such a right with a completely new set of rules.

First, some context:

There has never been a direct Constitutional right to counsel in immigration proceedings. Immigration removal (née “deportation”) cases are brought under civil charges, conveniently placing them outside the scope of the Sixth Amendment’s guarantee of assistance of counsel in criminal prosecutions.  Pro: The federal government is saved the significant expense of appointing attorneys to represent aliens facing deportation. Con: Immigration respondents—including refugees and others with potentially legitimate defenses to their deportation—must pay for their own lawyers, and are left with no recourse when incompetent attorneys snatch defeat from the jaws of victory.

No matter how unfortunate, this outcome is entirely inevitable given the stated intent of the Sixth Amendment to protect defendants in criminal prosecutions. But in Matter of Lozada, the Board of Immigration Appeals generously found that aliens in immigration court do have basic due process rights under the Fifth Amendment which extend to something approximating a right to counsel. Under Lozada, a due process violation amounting to what criminal lawyers would recognize as “ineffective assistance of counsel” (”IAC”) may be triggered if the attorney’s performance was so poor that it actually precluded the possibility of a fair hearing. Having found that this right existed, Lozada then outlined a series of steps which aliens must take (including, controversially, either filing a complaint with the attorney’s state bar organization or explaining why such a complaint had not been filed) prior to claiming IAC for purposes of reopening prior immigration proceedings.

In Compean’s opening reel, Mukasey effectively acknowledges what most of us had already recognized but didn’t really want to admit: Lozada was an awkward attempt to stick a Constitutional right to counsel in a place where that particular sun was never meant to shine. As Mukasey thoroughly demonstrates, the right to counsel has never been held to exist in any other kind of civil proceeding–other than civil commitment proceedings, at which a cognizable liberty interest is at stake–and this right has no place in Immigrationland. (While I recognize that indefinite separation from one’s friends, family, and adopted homeland may not strictly constitute a “life, liberty or property” interest covered by the Fifth, I think that we can all agree that it sucks.)

Compean’s second half is where Mukasey reminds us that he is still—if only for thirteen days or so—the reigning demigod of Immigrationland, and that he may reshape its terrain at will. Having already elegantly excised all legal and Constitutional concerns from the discussion, the AG proceeds to install an entirely new set of obstacles for would-be IAC claimants.

Where Lozada established three preliminary requirements for an IAC claim, Compean has five (and change), none of which I really care to get into now. Where Lozada had Constitutional underpinnings, Compean is a sui generis act of executive fiat. Where Lozada was based upon fundamental considerations of justice, the new Compean regime is a cynical bait-and-switch framed as an act of manifest generosity. As you might expect, there are some people who are unhappy about this.

Although Lozada will remain the law for all proceedings initiated prior to January 7, future non-citizens finding themselves in removal proceedings should now be advised to choose their attorneys very carefully. Immigrationland is already a weird and dangerous place that should not be entered without a competent guide, but Mr. Mukasey has now seen to it that you’ve really got no one to blame but yourself if you’re left drowning in quicksand.

In an interesting footnote (although, really, is there any other kind?), Mukasey specifically states that this opinion is not meant to apply to “notarios,” “legal advisors,” and the legion of other mouth-breathing crooks and shysters who have been the bane of the immigration bar for as long as it has existed. This was an open question under Lozada, and Mukasey has not provided the answer I would have wanted. While Compean has already precluded all but the most desperate non-citizens from raising IAC claims, this footnote specifically slams the door for those who may most need this relief: non-citizens swindled by non-attorneys.

Oh, and one more thing that hit me on first read: Compean’s final requirement that the attorney filing a motion to reopen based upon an IAC claim must certify in a sworn statement that (basically) prior counsel totally sucked. Lozada already reminded us that we all live in glass houses, but this… Ouch.

I can’t really write much more about this right now. While I’m disappointed with the spirit, tone, and outcome of this decision, it’s the timing that really gets me. (Gotta wonder: How many more consequential decisions must be spewing from every corner of Bushworld this week?) Michael Mukasey was Attorney General for just a little more than a full year, and he will be out of a job very, very soon. Along with his infamous (although technically correct) pronouncement that “not every wrong… or violation of the law is a crime,” this forceful ruling may well stand as his most memorable legacy from his short time as our nation’s leading lawyer. But, hey: at least he can leave with the honest knowledge that he wasn’t Fredo!

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.

So onward, to the  sack of coal left on the immigration bar’s doorstep this Christmas Eve by the First Circuit in Amilcar-Orrellana v. Mukasey, No. 08-1563. I’ve been thinking about it a lot this week.

The facts, in brief: Jose Amilcar-Orellana crossed the border in 1994 as a refugee from El Salvador and made a life for himself with family in East Boston. About six years later, he witnessed gang members pour a liquid into his apartment building’s entryway and light a match. Amilcar-Orellana immediately called the police, warned his neighbors, and helped to save several children as the building burned. As the only witness to the arson, he then assisted the police in identifying and locating the perpetrators, one of whom came by several days later to threaten him. Despite this obvious danger to himself, Amilcar-Orellana eventually testified in grand jury proceedings against the arsonists (neither of whom were prosecuted for the crime for reasons not mentioned on the record). Several days after his grand jury testimony, the gang sent men to look for him—at which point Amilcar-Orellana prudently decided that it was time to return to El Salvador.

Amilcar-Orellana lived for several months without incident in El Salvador until the arsonists were deported, at which point they sent the gang (never named in the opinion, but it is fair to assume that MS-13 had at least a cameo in all of this) around to look for him. (Gangs have a way of doing that in a country which–size-and-elsewise–is the New Jersey of Central America.) Amilcar-Orellana and his new, newly-pregnant wife fled to Mexico, and then on to the US. They eventually found themselves in asylum proceedings before an IJ in Boston who ruled that they had not been targeted by any particular gang, but only by two individuals with a “grudge.” And “grudges,” of course, do not an asylum case make.

The Board of Immigration Appeals agreed with the IJ on appeal, and further held that “non-confidential informants who have identified gang members, and given information regarding specific criminal activity to law enforcement officials” were not members of a properly-identifiable social group for asylum purposes, especially given that there was no evidence on the record that known informants suffer higher rates of violence in gang-ridden El Salvador than anyone else. (Also not on the record: the color of the sky in El Salvador. How can we be sure?) The First Circuit upheld all of this, as well as the BIA’s earlier finding that his decision to participate in the prosecution did not amount to any kind of a political opinion. He was, after all, only risking his life in an attempt to be sure that justice was done because he believed that it was, in his words, “the correct thing to do.”

As an immigration practitioner, I know that the immigration bar has continued to try to push the edges of asylum based on “social group,” especially as it relates to victims of gang activity, with little success. I can understand why denial was reasonable here under existing asylum standards, even if I respectfully disagree with both the ruling and the outcome; there’s nothing new here.

As an East Boston resident and homeowner, this precedent gives me serious cause for concern. While Eastie’s gang problem has been significantly reduced since the time of these events, it has not been fully eliminated. I do not want my neighbors to have any reason to pause before picking up the phone to report any crime—let alone brazen acts of gang violence—or to feel that our local, state, and/or federal government will not protect them during and subsequent to the prosecution (and possible deportation) of the perpetrators.

But my larger concern is as an American. I simply can’t believe that it is beyond the ability of my government to extend even the most basic protection to a decent man who put his life at risk because “it was the correct thing to do.”

There was an argument (raised for the first time on appeal) that Amilcar-Orellana’s decision to assist law enforcement officials was made due to a fundamental opposition to gang activity (which, sadly, amounts to a political opinion in El Salvador these days), as well as a belief in the superiority and fundamental efficacy of the American legal system and the rule of law. This argument is a stretch (and hasn’t gone over so well when I’ve tried it with IJs in the past), but it’s a solid backup to the social group proposed here.

Beyond these tenuous asylum grounds, the “S” (”a.k.a. ‘Snitch’) visa is the only other potential safe harbor for most people like Amilcar-Orellana who have put themselves at risk due to voluntary participation in most kinds of criminal prosecutions. (T and U visas are also available for victims and witnesses of certain delineated types of crimes not relevant to this post, but that’s another dicussion.) The S is pretty much just what it sounds like: a basic legal status for those who have been or may be materially helpful to  criminal prosecutions which may be permitted to later serve as the basis for adjustment of status to permanent residency.

Unfortunately, as I was once memorably informed by a DHS trial attorney, actually getting an S visa is “climbing Everest.” There’s no application—referrals are made internally by law enforcement—and only 200 may be awarded per year nationally. (Only an additional 50 [!] are allotted for the S-6, a variant specifically available only for anti-terror cases.) Given this limited pool, S visas are by necessity prioritized for the most prominent federal cases–and almost never for state-based prosecutions, even if state law enforcement agents are technically permitted to apply for them.

As interesting a policy discussion as all of this may be, Jose Amilcar-Orellana is a real person with a real decision to make: to voluntarily return to an ugly death in his home country or to rejoin the undocumented underground in East Boston (or, if he’s as smart as I think he is, elsewhere) and wait for ICE to catch up with him and execute an outstanding removal order which will almost certainly amount to a death sentence. He is not the first person to risk his life to do the “correct thing” in the belief that our government would be able to protect him from retaliation, and he may not be the last to die for this mistake.

“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.)