Wednesday, September 20, 2017

Living in the Machinery of Death

Being a clerk on a United States Court of Appeals was one of the truly great honors of my life. It was a fantastic experience, which included the chance to have a direct hand in the development of American law, to occupy a front-row seat to observe how the legal sausage is mad, and to work side-by-side with some exceptional attorneys and for a federal judge who was a fantastic friend and mentor.

But I've also remarked that, during the tenure of my clerkship, I often felt as if I was "ruining far more lives than I was validating." One arena of law which provoked that feeling was criminal law, where truly obscene oversentencing was a daily occurrence. Another area was immigration.

By the time an immigration case reaches the United States Court of Appeals for the Eighth Circuit, the median adjective describing the appealing immigrant is probably "doomed". This is due to a confluence of factors -- the laws on the books are immigrant-unfriendly, the immigration judges are often immigrant-unfriendly, and the standard of review for immigration claims at this stage is exceptionally immigrant-unfriendly. What that meant in practice was that, over and over again, I found myself reading files of people who insisted that they'd be hacked to death if they were deported back to Central America, then assisting in perfunctory one paragraph orders denying their appeal.

The risk (of being hacked to death) wasn't made up. I was generally quite persuaded that they were at serious risk of violent attack if they were returned to their home countries. But, as I said, the law is quite unfriendly, and since the persecution was rarely the result of direct governmental animosity or membership in a cohesive social group, there was usually nothing to be done. On the rare occasions where there seemed to be a glimmer of hope, I tried my best -- and most of those cases I was unsuccessful. But even the cases where there was even a implausible shot were few and far between. For the most part, the legal rulings were straight-forward -- hence why they could be expressed perfunctory, single paragraph orders.

The law is straight-forward and it is clear. That does not change the reality of the situation. It is fair to say that the true villains here are the politicians who write and the people who demand laws which regularly enable such horrible outcomes. Fine. But the fact is I was a gear in a machinery of death, one that destroyed families and ruined lives. In terms of how much culpability you want to assign to me, personally, or other agents of the federal judiciary, legal formalism is a fine consideration to take account of. But appealing to it to deny the nature of the machine -- not to say "it's not my fault" but to say "that's not what was happening" -- is a psychological numbing agent. We run to it because it's terrible to have to face up to the reality of the situation.

The Austin American-Statesman reports on a recently deported immigrant -- snatched outside of a courthouse where he was facing a few minor misdemeanors -- who was just found murdered back in his native Mexico. Murdered, just as he told a federal court he would be in a futile effort to stave off his deportation.

Juan Coronilla-Guerrero had a criminal background. Not a serious one, but not a spotless one either. In this, he is little different from many Americans who have a spot or two in their past. Which itself raises the DACA question posited by, among others, my friend Joel Sati. DACA is for perfect immigrants -- those with not a single blemish on their record, those who perfectly fit a respectability narrative. Of course, it's understandable that, in unfavorable conditions, you latch onto the best stories you can. It's no mystery why DACA or the Dream Acts are framed the way they are.

But Juan Coronilla-Guerrero was not a murderer, or a rapist, or a child abuser. More to the point, he did not deserve to die. If or when DACA is passed, or a Dream Act, or some other comparable piece of immigration reform make it through Congress, it will undoubtedly exclude many, many Juan Coronilla-Guerreros. Not perfect people, but not bad people either. And despite the fact that they aren't hardened criminals, or "bad hombres", or incurable monsters, they'll continue to be deported, in circumstances where the results are entirely predictable -- ruined lives as best, death and maiming at worst.

We should still pass a DACA bill. We should do what we can, in the imperfect world we live in, bounded by the terrible political constraints that bind us.

It will remain a machinery of death. I'm not about casting blame; feel guilty or innocent at your own discretion. But don't deny the nature of the machine.

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