One quick followup to  last month’s jeremiad on outgoing Attorney General Michael Mukasey’s last-minute decision to single-handedly invalidate any Constitutional basis for counsel in immigration removal proceedings in the awkwardly-titled decision that we’re all just calling Compean:

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.

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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: here for 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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