If you like Mass Appeal, please be sure to check out  There Is No Line, my newest blogging venture. TINL intends to provide actual facts in response to actual arguments and assertions made by actual people—some of whom are merely misguided or misinformed, and others who we believe to be actively misleading the American public–engaged in the American immigration “debate” (such as it is). I’ll still be doing my best to keep up with Mass. appellate law in the meantime, but just wanted to share the news.

Uncategorized

This week’s cautionary tale in sloppy, reactionary lawmaking comes courtesy (as it so often does) of the Massachusetts legislature.

Our very own Great and General Court, a full-time, democratically-elected, deliberative body which occupies the very “hub of the solar system” (but hasn’t quite gotten around to formally criminalizing human trafficking)¹ hastily passed a misguided amendment to our criminal laws earlier this year which effectively attempted to regulate the entire Internet. Here’s how it (literally) went down.

Round 1: “If the Legislature wishes…”

On February 5, 2010, the SJC issued a fairly conservative, by-the-book decision in Commonwealth v. Zubiel, 456 Mass. 27 (2010), in which it strictly construed the text of the G.L.c. 272, §31 to find that the statutory definition of “matter harmful to a minor” did not include instant messaging. The defendant in that case was nailed in a classic To Catch a Predator-style sting following a series of online chats with an undercover officer posing as a 13-year-old version of herself. Over the defendant’s objection, the trial court determined that his Internet chats with the officer constituted an attempt to disseminate “matter harmful to a minor” under G.L.c. 272, §31. The SJC reversed this finding and agreed with the defendant that the statutory definition of “matter”—the most relevant portion of which included “handwritten or printed material”—could not have possibly meant to encompass text-only online communications. In conclusion, the Court quite reasonably found that:

While proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions in §31 do not do so. If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.

Whatever “judicial activism” may be,² clearly this ain’t it. The Court stayed well within the lines here and politely invited the Legislature—as, with mixed results, it so often does—to update one of the Commonwealth’s many hundreds of outdated laws.

So it did.

As of July 11, 2010, the new text of §31 defined “matter” as:

…any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, [the original text of the definition ended here] or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

As someone behind this ridiculously overbroad definition must have known, this kind of thing has been tried on the federal level at least twice within the past fifteen years, and there is a good reason that it has failed both times.³ Rather than targeting creeps who directly and purposefully attempt to inappropriately communicate with children on the Internet, this amendment effectively attempted to criminalize anything on the Internet that a child might see… which is, of course, anything on the Internet.

It is reasonably simple to keep kids out of, say, an adult bookstore or the World Air Sex Championships.⁴ But, as anyone who has lived in a country with free and regular Internet access within the past twenty years should probably understand, it is nearly impossible to effectively prevent determined minors from accessing an adult book reprinted on a freely-accessible site via a Creative Commons license, let alone a particularly excitable blogger’s detailed description of the winning performance at the World Air Sex Championships.

To recap: In response to the SJC politely pointing out that the Legislature had failed to understand how a given law might apply to the Internet, the Legislature proceeded to demonstrate that it did not understand the Internet at all.

Round 2: If You Can’t Beat ‘Em, Enjoin ‘Em

All of this is, of course, the kind of thing to which any given ACLU lawyer can whip up a written opposition before she has finished her first cup of morning coffee. The inevitable request for a preliminary injunction [PDF] came almost as soon as the new definition became law, with the plaintiffs arguing (as summarized above) that the amended statute was overbroad in that it is nearly impossible to control who might access content which might be deemed “harmful to a minor” on the Internet.

In its commendably-thorough briefing [PDF], the Attorney General’s office was effectively forced to concede that the statute as written would be unconstitutional without an explicit requirement that the sender know that he was purposely disseminating the material to a minor, rather than simply posting such material in a place where a minor might have an opportunity to see it. Although this proposition found little support in the text of the statute itself, the AG did its best to argue that a 2006 SJC case⁵  had judicially established this kind of purposeful dissemination as an element of the crime, and otherwise relied on the kinds of generalized public policy arguments which typically signal an appellate party’s own self-awareness that a losing battle is about to be lost.

U.S. District Court Judge Rya Zobel’s decision granting the plaintiffs a preliminary injunction came down almost exactly along welcome and expected lines today. The District Court held that Belcher had not squarely ruled on the level of intent necessary for a conviction under this statute, and that the new definition was otherwise simply so overbroad as to be “without question” facially violative of the First Amendment. Given the procedural posture of the case, the court found that it would be inappropriate to strike the statute down completely, and instead granted the plaintiffs a preliminary injunction while inviting both parties to submit a more formal permanent injunction.

Round 3?

We’ll see. It appears likely that the AG’s office will take the District Court up on its offer to come up with an injunction that both parties can live with, but it also has the right to appeal this decision to the First Circuit. More as it happens…

1. There’s also an argument to be made that we haven’t quite gotten around to criminalizing distribution of methamphetamine, but maybe more on that another time… [↩]
2. And I wouldn’t deny that something approaching this description does occasionally arise in Roberts-era American jurisprudence… but not simply because I disagree with the outcome of a given case. [↩]
3. A much narrower and more appropriately-targeted provision requiring certain schools and libraries to install user-side content filters  seems to have stuck, so far. [↩]
4. This was the only event I could possibly imagine might fall under the purview of the statute’s “dance” provision. [↩]
5. Commonwealth v. Belcher, 446 Mass. 693 [2006] [↩]

Uncategorized

As both of my regular readers may recall, I had a few things to say last year about the lack of both transparency and proper subject-matter jurisdiction of the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS).  To my surprise, this painfully wonky little critique of a mostly-unsung agency has been one of my most consistently-visited posts over the course of the past year.¹

AAO Chief Perry J. Rhew

One of those visitors was new AAO Chief Perry J. Rhew, an accomplished public servant with a resume which includes significant experience and positions of authority in civil, criminal, and administrative law. I have recently had the privilege of conducting a very pleasant email exchange with Chief Rhew, and would like to take an opportunity to update my thoughts on the AAO in light of his gracious response to my concerns.

Chief Rhew initially contacted me with a personal invitation both to the AAO’s first-ever live public conversation with its stakeholders via an interactive conference call, as well as to consider the agency’s progress toward addressing my concerns over the past 12 months. Although I had originally marked my calendar for this unique event earlier this week, I was disappointed when unavoidable client obligations ultimately forced me to miss it.  While I by no means consider myself to be a journalist,² I wanted to be sure to permit the AAO a full and fair opportunity to respond to the issues raised by last year’s post.

While I would have preferred the opportunity to hear the more comprehensive presentation provided in this week’s session, Chief Rhew was kind enough to take the time to summarize his main points for me in his most recent email, which I have reprinted below in its entirety with his permission:

Matt,

I’m sorry you had to miss the call.  Unfortunately there is no transcript or live recording.  We had about 30 people in the room and another 300 or so on the phone, which resulted in a lively discussion for the two hours.

You figured prominently in my opening remarks.  I told those assembled that before coming on board I saw your blog and took the concerns to heart, keeping what you said in mind over the first couple of months to assess the need for change.  With the support of a terrific leader, Alejandro Mayorkas, here’s what we’ve focused on in the past year.  I discussed all of these issues on the call Wednesday.

• More information about the AAO is now available online.  I listened to external stakeholders and USCIS employees over the first few months, then sat down with the Office of Communications and crafted webpages for www.uscis.gov/aao, the first AAO website.  The pages went live in January and we are adding to them as additional information is developed.

• We’ve worked hard to increase our public presence by attending individual stakeholder sessions and listening events across the country.  I visited the Service Centers in Vermont, Nebraska, California, and Texas and field and district offices this past year, speaking to employee groups and at public events.  I was honored to work with the terrific Office of Citizenship and be able to give the keynote address at Naturalization Ceremonies at the Jimmy Carter Presidential Library in Atlanta and at Fort Necessity Battlefield.

• We are adding adjudicators to our staff in an attempt to reduce delays in processing.  We expect to have the new adjudicators trained and drafting decisions by the first of the year, and hopefully will reduce our backlog of H1, I-601, and I-140 cases significantly in the coming months.

• Our stated goal for the year was to achieve a processing time frame of under six months for at least 25 of the 41 types of cases we report online each month.  We ended the year with 31 of the 41 averaging under six months.  Three times during the year we shifted resources and retrained adjudicators to move them to more pressing caseloads.

• We report and update our case processing timelines monthly online.

• After a months long effort yesterday, for the first time in 12 years, the AAO published two Precedent Decisions.

• As I mentioned on the call and have stated before, we hope to soon publish a proposed AAO Reg that will help streamline the appeals process and give the public a much better understanding of what to expect when they file an appeal.  We currently operate under a delegation of authority from the Secretary, but the new Reg will once again codify our jurisdiction.

• We are working with the USCIS Transformation Leadership Team to ensure that the AAO moves forward into the electronic environment.

• We worked with our colleagues at the Office of Chief Counsel, the Office of Policy and Strategy, the Office of Public Engagement, and the DHS Office of General Counsel to strengthen our relationships with those offices and hopefully move serious, high level discussions about common issues to the forefront of conversations.

• I hold frequent meetings with all of my Branch Managers at the AAO to discuss case concerns and resource allocation.

That’s it in a nutshell . . . so far.  I want to thank you again for raising these concerns last year.  It is certainly not always the case, but we now know the answer to that age old question:  What’s the sound of one lone voice crying out in the blogosphere?  In this case, positive moves in the right direction.

Take care,

Perry

Chief Rhew’s summary of his commendable efforts since assuming leadership of the AAO speaks for itself. I would like to reiterate, as I hope was evident from my original post, that it was never my intention to question the AAO’s integrity, efficiency, commitment to its stakeholders, or unquestionable utility to the American immigration system. My only serious stated qualms were with the agency’s (a) transparency (in line with the recommendations of the 2005 ombudsman’s report) and (b) proper subject-matter jurisdiction, an issue which is of enormous importance to me as an appellate advocate. I am fully satisfied that Chief Rhew has personally committed himself to taking significant steps toward improving the former, and I look forward to seeing the proper regulatory restoration of the latter.

On a personal note, I would like to thank Chief Rhew for taking the time to engage in this direct, effective, and (perhaps most importantly) enjoyable dialogue, both with me on a personal level and through the public conversation I was sorry to miss earlier this week. This is open and responsible government at its finest, and a nice reminder of why I have continued to appreciate the opportunity to assist deserving individuals from around the world toward fulfilling their dreams of full participation in our democracy.

1. For as much as I would like to take credit for all of this traffic, this fact likely says more about the historical dearth of publicly-available information on the AAO (one of the main points of contention within my post) than it does about my Google ranking. [↩]
2. Or at least tend to sprinkle my writing with several times more miserable puns and references to Scotch than AP style would typically allow [↩]

Uncategorized

Imagine, if you will, that you are a reasonable Massachusetts resident who awakens early one spring morning to find that some evil prankster has littered the lawn and sidewalk outside your home with open bear traps and slimy old banana peels. You know that dozens of kids will be walking past on their way to your nearby middle school within the hour.

Your responsibility under the circumstances is pretty clear here, at least unless you’re prepared to pay for a wardful of kiddie-sized artificial limbs: you’re going to have to clear out, rope off, or otherwise mitigate an obvious hazard to the public on your property.

Easy enough. Now try this one: what if it were a January morning, and you awoke to find that your sidewalk had naturally frozen into a solid sheet of slippery snow and ice? Until recently, you could have thrown some popcorn in the microwave, eased into your favorite bunny slippers, and enjoyed the hilarious slip-and-fall antics with your morning coffee.

The ice was, you see, merely a “natural accumulation.” It came from the sky! It wasn’t your fault!

That’s right: Massachusetts law for the past 150 years has held property owners responsible only for injuries resulting from “unnatural accumulations” of snow and ice. While the “natural” vs. “unnatural” distinction is about as unnatural as it gets, the best I’ve been able to discern is that accumulations caused by any kind of “synthetic” means (i.e., your mother going a little crazy with the snowblower) incur liability, while those which have fallen into place “naturally” (i.e., Mother Nature) do not.

This rule, eliminated at long last today in Papadopolous v. Target, was so stupid that it has been known nationwide as “The Massachusetts Rule” for at least the past century. (This kind of special treatment is not generally proportionate to a given rule’s logic or correctness.) It is an ancient holdover from a time when a completely different legal standard was applied to the duty owed by landowners to people who might be passing over their property in the normal course of business (”invitees”) as opposed to paying tenants.¹

I don’t have much of a stomach for torts,² but anyone who was mostly conscious through their first year of law school will recall the “duty of reasonable care” which homeowners owe to those—even, in some cases, known trespassers—who may be crossing over their property. The principle is pretty straightforward: Every man’s home is his castle, and if you want to cover your floors in rancid butter, rusty caltrops, and used medical supplies, you have every right to do so—so long as you don’t expose anyone else to these conditions. If you know (or have reason to know) of a hazard which might be encountered by others, you have a legal³ responsibility to employ all reasonable means available to clean it up. Hence the banana peels-and-bear-traps hypothetical above, and the simple logic of today’s decision. While a general duty of reasonable care to anyone who might cross their property has been the law for property owners in the Commonwealth since at least the 1977, the courts never bothered to shovel up the old “natural” vs. “unnatural” distinction for snow and ice—and plaintiffs have been tripping up on it ever since.

This weird little exception to the reasonable care rule is somewhat understandable on a practical level: clearing out snow in the middle of a New England winter is a lot of work. But even Rhode Island⁴ snidely parted ways with Massachusetts on this years ago, laconically noting that:

We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.

–-Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(emphasis added)

The SJC has basically adopted this reasoning, albeit in slightly less-quotable form, and scattered enough quick-melt salt on the old “natural accumulation” rule to do away with it forever. It even liked this development so much that it opted to make the rule fully retroactive—complete with the usual inevitable assurances that, really, there’s no reason to think that any litigation-minded plaintiff would actually be impolite enough to reach for the blank checkbook this might present for anyone who has taken a spill on some ice in the past 150 years.⁵

As of Papadopolous, the SJC has now finally—mercifully—brought Massachusetts to the very cutting edge of postmodern snow law. Bonus: this decision lands in the middle of one of the Commonwealth’s hottest summers on record.

Happy shoveling!

1. The SJC has provided a perfectly serviceable review of the 150 years of relevant law within its opinion which I don’t feel any need to retread here. [↩]
2. at least those not served a la mode [↩]
3. if not moral and social [↩]
4. Rhode Island! A place so married to tradition that it is the last American state to continue to openly celebrate Victory over Japan Day! [↩]
5. I kid. This was, of course, a major change to a common law rule, a circumstance which generally demands retroactivity. I just love how every time any court announces a groundbreaking retroactive rule it always seems to feel obligated to add that this won’t really, y’know, change anything, and there’s certainly no reason to believe that it will inspire a fresh wave of legal action. [↩]

Uncategorized massachusetts, stupid laws

So you’ve been caught stealing from The Electric Company.¹  Your trial and conviction were otherwise unremarkable, and you’re short on good issues for appeal. Might as well try this:

The defendant lastly contends that the electricity and the gas sold by NSTAR do not constitute “property”…

Commonwealth v. Catalano, No. 08-P-1340 (July 1, 2009)

This is, of course, yet another appellate argument that sounds totally crazy when you say it out loud. Sure, the appellant is saying, maybe the electric company generates, manages, and distributes electricity, but that doesn’t mean that they own it! As The Rascals once never sang: All the world over, so easy to see… Currents of electrically charged particles passing by means of conductors from one body to another just got to be free!

Although perhaps morally questionable, this position is actually legally defensible. On first read, the definition of “property” outlined in the larceny statute really doesn’t seem to include electricity, or anything that resembles electricity.² While it is otherwise remarkably thorough—e.g., ”data while in transit,” “a beast or a bird which is ordinarily kept in confinement”—the statute makes no mention of household utilities as property subject to larceny.

Of course, the court also doesn’t want to be responsible for converting the Commonwealth’s entire electric grid into some kind of wacky Napster-style free-for-all. So, soldering iron in hand, the panel expertly grafts public utilities into the larceny statute’s “personal chattel” provision.

“Chattel” is, of course, one of the grande ensemble of Frenchified lawyerin’ words which came to dominate English common law after the  Norman Conquest. It’s really just a fancy way to say “movable property,” and is best defined as pretty much anything that could logically complete the phrase: “Hey, that guy just stole my _________!” As the Appeals Court is quick to note, gas has been viewed as a chattel subject to larceny in the Commonwealth since at least 1853. But no one had ever bothered to ask about electricity before now.

Bereft of any relevant Massachusetts caselaw, the court reluctantly resorts to actual science. After (presumably) dispatching a law clerk for a field trip to the Museum of Science’s Van de Graaf generator exhibit, the Court reports back that:

…electricity, like gas, also may be stored and conveyed. Storage is possible in a capacitor, and may be transmitted through wires.

Well, that and the U.S. Supreme Court already found that there is a property interest in electricity 70 years ago, as have several other states. So while this “would have been a novel question one hundred years ago,” and “the defendant is correct that this precise issue has never been addressed in Massachusetts”:

…it is a well-established legal principle that electricity and gas are personal property that may be the subject of larceny.

1. Better them than 3-2-1 Contact, which no doubt would unleash the unchecked extralegal vigilantism of  The Bloodhound Gang. [↩]
2. ”The term “property”, as used in the section, shall include money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or intangible, data while in transit, telecommunications services, and any domesticated animal, including dogs, or a beast or bird which is ordinarily kept in confinement.” G.L. c. 266, § 30(2 [↩]

Uncategorized

It’s the bottom of the ninth for The Nine as we head into the U.S. Supreme Court’s last full week of the 2008-2009 term. As always, the Court is saving some of the best—and, inevitably, most internally divisive—rulings for last.¹ Here in the Commonwealth, we are eagerly awaiting the results of the most significant Massachusetts criminal case to reach the nation’s highest court this term: Melendez-Diaz v. Massachusetts, 07-591. If it comes down the way that most people seem to be expecting, this ruling may have an a broad and immediate influence on the litigation of drug-related criminal cases.

Luis Melendez-Diaz was arrested in Dorchester during the course of a drug transaction in a parking lot. He and his co-defendants were found to be in possession of a number of plastic baggies of powder of varying consistencies—some of which was white, some of which was yellow. Some, but not all, of these substances were tested by chemists in the state drug laboratory, and the lab concluded that all 22 grams or so was cocaine. The forms certifying these findings did not offer any specific information as to what methods were used to reach this conclusion, exactly how much of the drugs were tested, or any explanation as to the obvious differences in visual appearance between the samples. Pursuant to standard Massachusetts trial procedure, these drug certifications were deemed admissible in and of themselves, and their authors were not called to testify.

In his appeal to the Massachusetts Court of Appeals, Melendez-Diaz argued that these drug certifications were inherently “testimonial,” and therefore constituted inadmissible hearsay without the supporting live testimony of their author at trial. This argument naturally arises from recent developments in the interpretation of the Sixth Amendment’s Confrontation Clause, which provides that “…in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Like so many of our finest Constitutional principles, this is an ancient and honorable doctrine with a pedigree that predates Roman law, and a reasonably simple one: whenever realistically possible, our society believes that witnesses with testimony that would tend to criminally inculpate a defendant must be brought into court not only to present this evidence, but to be made available for cross-examination by the accused.

Unfortunately for Melendez-Diaz, the Supreme Judicial Court of Massachusetts had already squarely addressed this issue in Commonwealth v. Verde, 444 Mass. 279 (2005), and concluded that drug certifications are merely “business records,” rather than testimonial hearsay. Bound by this precedent, the Appeals Court dismissed Melendez-Diaz’s appeal in an unpublished opinion [PDF] which the SJC declined to review.

While this would almost certainly be the end of the road for any given criminal appeal, Melendez-Diaz had the benefit of some truly impressive advocates who took his case from an unpublished dismissal by an intermediary state appellate court straight to the docket of the U.S. Supreme Court. Inspiring stuff for any aspiring appellate attorney, but why would the Supremes choose to pluck this otherwise-unremarkable little case out of obscurity?

Read more…

1. As summarized over at SCOTUSblog, there are a total of ten major rulings left as of today’s date, including a campaign finance case arising from an anti-Hillary Clinton campaign “film,” a Fourth Amendment challenge to a school’s humiliating strip-search of a young girl, and the politically-charged “New Haven firefighters” Second Circuit case in which Supreme Court nominee Sonia Sotomayor was a panelist. [↩]

Uncategorized

“…the foreigner, and the fatherless, and the widow, who are within your gates.” —Deuteronomy 16:14

There are more than a half-dozen Bible verses which extend equal status to immigrants and widows in the same breath, and it logically follows that the authors intended for each group to be protected and respected equally.¹

This month has seen justice for both the foreigner and the widow in relation to appellate topics previously covered in this space:

(1) Attorney General Eric Holder formally vacated [PDF] former AG Michael Mukasey’s midnight denial of immigrant’s rights to counsel in removal proceedings [PDF] and has ordered the DOJ to look into reasonable, Constitutionally-friendly guidelines on this front.

(2) DHS Secretary Janet Napolitano has punted the “widow penalty” issue for the time being by placing a two-year moratorium on the deportation of widow(er)s and any children under 18 who may otherwise be adversely affected by this penalty. This is a fair solution, and represents about the most that she could do independent of Congress or the courts. As I have previously noted, two years should be enough time to give Congress and/or the Supreme Court to do something about this, and I am now fairly confident that justice will be done on at least one of these fronts within the next year.

1. Not that anyone at FAIR particularly cares what the Bible actually says. There’s really no looking back once you’ve been certified as a hate group, after all. [↩]

Uncategorized

Great stuff coming down on every level these past couple of weeks, more on which maybe later. But I have to say a few things about the First Circuit’s thoughtful and eminently humane ruling in Taing v. Napolitano (May 20, 2009)(PDF), which has elegantly struck down the “widow penalty” here in New England.

This “penalty”–and there really is no other word for it–is probably the single harshest and uglist rule in our present immigration system. Here’s how it works:

Marriage¹ to a U.S. citizen is one of the simplest ways to gain residency to the U.S., as it should be. Presuming they entered the country lawfully and otherwise meet the requirements, non-citizens are generally eligible to have their American spouses file visa petitions on their behalf to request that Immigration recognize and validate the marriage as a basis for permanent residency.

But what if your spouse dies either during the increasingly-lengthy period of time that it takes the government to process your “immediate relative” petition or before your second anniversary? The answer, at least under current law in eight of the eleven circuits, is as shocking as it is shameful: nothing. Your petition is deemed abandoned and your opportunity for a new life in the U.S. has died with your spouse. You might be grieving, but the government wants you leaving.

By comparison, if your union goes the way of at least half of American marriages within the same two-year period, you may be still be able to successfully “self-petition” to pursue residency even without your ex, provided that you can prove that you originally got together for the right reasons.

So it’s all pretty arbitary. Marry a virtual stranger in Vegas on a whim, and you can still roll the dice on a chance at residency even after the inevitable divorce six months later. Fall for a Marine who dies a hero in Iraq while you’re waiting the many long months that your petition is pending, and you’ll be eligible for… forcible deportation. Within days of his funeral.

Something this stupid and cruel can’t (we can only hope) stand for long, and the Sixth and Ninth Circuits have already ensured that it won’t in their respective jurisdictions by finding that recently-deceased spouses can still be “immediate relatives” under the proper circumstances. As of this week, the First has joined that list.

It’s not only a good opinion, but it’s kind of a fun one. While the Taing court could have disposed of this issue in short order, why simply grant an appeal in six pages when you can grant the appeal and beat up on the Department of Homeland Security for twenty-six?

The government’s arguments really are the most fascinating thing about this case. Here’s a small selection of them, with the court’s responses:

1) You can’t have a dead “spouse”! Well, sure. With the possibly exception of the several dozen women to whom Larry King pays alimony, most people can generally accept that you can’t marry a cadaver. But you certainly can have previously married someone who has since died. The government seems baffled at this distinction; it cites, in a deliciously perverse twist, the definition of marriage outlined in the federal Defense of Marriage Act (”DOMA”) in support of its attack on the recently-married. As the court is happy to point out, however, DOMA’s sole purpose was to kill the hopes of living people in loving and committed relationships of being recognized as equal to their similarly-situated straight friends. Congress may (and does) have an unhealthy obsession with marriage², but even its most prurient minds do not appear to have anticipated the possibility of post-mortem matrimony.

2) “But Webster’s says….” Well, okay, the government doesn’t actually pull out every eighth-grade debate team member’s favorite tactic. But the First Circuit would like you to know that they do own a dictionary. A law dictionary. Appellate pro-tip: If your argument can be overcome using nothing more than a 19-year-old copy of Black’s³ and the reading comprehension skills required to spend an enjoyable morning with “My Pet Goat,” you’re doing it wrong. The legal definition of “spouse” includes surviving spouses. Full stop.

3) Let’s put on our statutory construction beanies! Okay, sure. But four can play at that game. Most of this opinion rests on complex statutory interpretation and, for as delightfully wonky as it all is, I can pretty easily distill the court’s response to the government’s arguments in this direction down to two words⁴: EPIC FAIL.

4) The Patriot Act! No, really. Sure, it was mostly just an opportunistic, hastily-assembled laundry list of questionable things that law enforcement had always wanted but had been afraid to actually ask for, but maybe it wasn’t all bad: Congress tucked in a special provision which permitted surviving non-citizen spouses of 9/11 and other specified terrorist attacks the opportunity to self-petition for residency within two years. So if this right had to be specially created through legislation, the government argues, it must not have existed before. Q.E.D.? Well, no. Not only was this special provision kind of, y’know, special, but it also didn’t actually require that the American spouse have actually filed a petition.

It goes on. The overall effect is that of a sort of all-you-can-eat smorgasboard of crazy, from which the court seems to enjoy picking up healthy samples–if only to sniff them and make funny faces and gingerly return them to the table. It even loosens its belt and helps itself to some public policy for dessert.⁵ The final page kicks off with what will have to be my favorite appellate sentence of 2009:

Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense.

(What, no citation?)

So, anyway. This is a great day for Mrs. Taing and all surviving spouses in Massachusetts, Rhode Island, New Hampshire, Maine, and Puerto Rico who will be protected by this decision–but what about the rest of the population not fortunate enough to live in the First, Sixth, or Ninth Circuits?

As the Taing court reminds us: “We must assume that… Congress did not intend an absurd or manifestly unjust result.” How charitable. (See DOMA, supra.)

Congress may well solve this problem⁶ through a bill recently sponsored by both of my senators, among others–but maybe not before the Supreme Court hears the case of Osserritta Robinson. Mrs. Robinson tragically lost her husband in the 2003 Staten Island ferry crash, and the Third Circuit upheld her order of deportation to Jamaica based upon a finding that she was no longer an “immediate relative” of an American citizen. Her request for review of this decision is now before the Supremes.

1. ”Opposite marriage,” that is. [↩]
2. Especially as it relates to the prospective union of man and box turtle… [↩]
3. The court quite sensibly consulted the 1990 edition to see what the definition of “spouse” would have been at the time that Congress last revised the controlling law [↩]
4. spoiler alert! [↩]
5. Seriously, the concluding section of the opinion is actually titled “Public Policy.” Not that there’s anything wrong with that, and certainly it sounds innocous enough. But public policy arguments are typically the last resort of idealistically-minded dreamers like me who (1) are otherwise running on empty, argument-wise and/or (2) would rather get out and invent some new laws rather than bother reading the old ones. For this court to finish up with a whole page on nothing but policy arguments is totally out of character, and in a really gratuitous way. I found it to be just a little like finishing the autobiography of, say, Mohatma Ghandi only to find a tacked-on epilogue called “I LOVE BEER!!!” [↩]
6. And when was the last time you heard anyone say that? [↩]

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The phrase “Lawful Permanent Resident” is one of the more unfortunate expressions in our present immigration system. Residency under this status is about as “permanent” as the accompanying “green card” is green. There are now officially more ways to lose your residency than Paul Simon had to sneak out on his girlfriend, and many of them are not as obvious as you’d think. (Only in Immigrationland could first-degree murder and failure to report a change of address within ten days be legally equivalent.)

Perhaps even more unfortunate is the hypnotic effect that the word “permanent” can have on criminal lawyers when considering whether to recommend that a client enter a plea in a given case.  It is all too common for counsel in these situations to blithely state that the ensuing conviction won’t carry any immigration consequences without doing the research, or, as I recently heard an attorney argue in open court, that “permanent residents can’t be deported.” It’s easier just to assume the best, I guess.

So now comes Jose Padilla (not the dirty bomb guy), whose request for further review was accepted by the U.S. Supreme Court last month in what may prove to be one of 2009’s most interesting and impactful immigration-related appeals. Mr. Padilla was a lawful permanent resident of the U.S. for more than forty years after emigrating from Honduras, during which time he served in Vietnam and then took a job as a long-haul trucker. Unfortunately for him, his last load included over 1,000 pounds of marijuana, with which he was caught in Kentucky and indicted on misdemeanor (???!) possession and felony drug trafficking charges.

When considering his options prior to trial, Padilla’s attorney allegedly informed him that he shouldn’t be concerned with immigration consequences of any of this because he had “been in the country for so long.” Based on this advice, Padilla entered a plea and accepted a five-year prison sentence, after which he was immediately placed in immigration proceedings. His case has now reached the Supreme Court on the theory that his attorney’s advice as to the potential immigration consequences was Constitutionally ineffective.

This argument has been tried before in pretty much every jurisdiction, and it’s usually a loser. This is because immigration consequences are typically seen as “collateral” to a criminal conviction, just the same as when felons lose things like (in some states) the right to vote, or (historically, but not so much anymore) the opportunity to serve in the military. As such, criminal attorneys are not generally required to give actionable advice as to the potential immigration consequences of entering a plea in a given case. And this is pretty reasonable, on balance. State criminal law and federal immigration law intersect in the strangest ways and in the oddest places, and expecting the average criminal trial attorney to keep up with all of the crazy details and developments in this area might not be any more reasonable than expecting the average immigration lawyer to have a practical working knowledge of the countours of the hearsay rule and its many, many exceptions under statutory and common law.

But then again: if you are going out of your way as an attorney to affirmatively step up and offer advice to a client on any legal matter, you’d best come correct. Even in the most thoroughly bourbon-soaked backwoods of Appalachia, any reasonable criminal lawyer should know that Immigration might want to have a word with a non-citizen found to be freighting  a HALF-TON of quality Mexican Mary Jane in his motor vee-hickle. So I’ll go ahead and say it right here: “you’ve been in this country so long that they won’t care” was advice so errantly stupid, so eminently unreasonable, and so inarguably incompetent as to require the invention of a new legal standard several miles beyond “ineffective.”

And that is why Padilla is such an awesome test case. Basically, if the Supremes don’t find that this was ineffective assistance, they will likely never find that any immigration advice affirmatively provided to a client prior to a criminal plea ever could be. More as it happens…

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Like so many other great American ideas, the concept of court-ordered probation in lieu of committed time was born in Boston. In 1841, a local shoemaker named John Augustus volunteered to take a local drunk under his wing after paying the man’s bail in an effort to rehabilitate him through a proposed system which he called “probation.” After modest success in this direction, Augustus went on to counsel a total of 1,946 convicted criminals in a remarkable volunteer career which ultimately spanned more than two decades. Reflecting on a group of boys he took charge of in his early days as America’s first probation officer, he wrote:

…the scene formed a striking and highly pleasing contrast with their appearance when first arraigned. The judge expressed much pleasure as well as surprise at their appearance, and remarked that the object of the law had been accomplished, and expressed his cordial approval of my plan to save and reform.

The Commonwealth eventually agreed with this assessment, andMassachusetts became the first state to adopt a formal probation system in 1880. Even today, the courts of the Commonwealth now sentence defendants to probation more consistently than any other American state. (Or at least that’s what I heard on NPR the other day. I’ll try to source that a little better shortly.)

But just because we’ve been doing this longer than anyone else doesn’t mean that our probation system is perfect, as we we were reminded in today’s Appeals Court ruling in Commonwealth v. Gomes.

The defendant in Gomes was convicted of gun charges, with no allegations that he had ever had any issues with drugs and/or alcohol. Regardless of this, Gomes’s court-ordered conditions of probation specifically included not only a prohibition against drug and alcohol use, but also required him to be subjected to regular drug and alcohol screening throughout his eighteen months of supervised probation.

On appeal, the defendant acknowledged that the prohibition on drugs and alcohol use was reasonable (he was under 21 at the time), but argued that he shouldn’t have to pee in a cup on command for 18 months just because he had been caught with a gun.

The Appeals Court agreed and held for the defendant, noting that “[a] judge’s latitude in sentencing is great but not infinite.” Because drug and alcohol testing amounts to a Constitutional search and seizure, the Court found that such random testing may only be included as a condition of probation in cases in which this testing would be “reasonably related” to “recognized probationary goals” for a given defendant.

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