In a thoughtful piece by the Director of the Federal Appeals Clinic at Boston College Law School, Laura Murray-Tjan brings up a good point in the Huffington Post: nobody understands immigration law. She points out that everybody—Republicans, Democrats, Libertarians, Green Party, everybody—apparently despises US Immigration law. Too enforcement-heavy and cruel, or too soft and generous: the arguments circulating in conversations at literally every level from Facebook memes to what’s being reported on Congressional debates are value-based, ideological arguments. But push all that aside for a minute, Murray-Tjan says, and talk about a different problem: immigration law as outlined in the Immigration and Nationality Act is “complex, counter-intuitive, and just plain confusing.” Immigration lawyers would have to agree.
Even Justice Samuel Alito finds the law muddling: in his Supreme Court decision in 2010, he described a passage of immigration text as “dizzying,”—it’s not just immigrants, advocates, laymen and immigration lawyers dealing with the convoluted concepts in the law: even the most brilliant mind trip over US immigration provisions.
Murray-Tjan goes on to examine the specific decision in an appellate court in which a valid green-card holder gets screwed by the unending and tortuous legal intricacies—such intricacies that the case required an en banc designation, basically meaning a whole bunch of clerks and judges had to collaborate on the case because the issues addressed with in it are both weighty and complex. It took eleven judges to reach a decision, which the Murray-Tijan, director of the appellate clinic, points out was wrong. Not morally wrong, not wrong in the sense of sob-story wrong or violation or defense of constitutional liberties wrong, but simply: incorrect. The writer argued that eleven judges with “a dazzling array of brain power” confused two entirely different defenses to deportation, “undoubtedly because they carry the same name.”
Summarizing the mix-up adequately enough so that most readers can understand it (a feat in and of itself), Murray-Tjan remind readers that the petitioner Joseph Young attempted to defend against deportation for a drug conviction by applying for “cancellation of removal.” The court incorrectly indicated that lawful permanent residents must prove “good moral character” and “exceptional and extremely unusual hardship” to close family members to succeed in their cases—but those criteria applied to applicants under a different statute than form of relief that Young sought (you can find the links to the statues themselves in the Huffington Post article). Not only that, but in the ruling, the judges used the wrong form—one to be completed by nonpermanent residents, while the correct form for lawful permanent residents like Young, containing different requirements was left out entirely.
The errors in the case are enough to elicit emotion from anyone, whether reform advocates demanding more accessible justice or immigration lawyers throwing up their hands in despair (because if eleven judges can’t get it right, who can?!). Murray-Tjan’s fears include an angry and polarized Congress making even more a mess out of reform—with a “hasty back and forth of ill-conceived provisions” having the potential to lead to “more confusion and human misery—not to mention more costly, messy litigation.”