Sometimes reading cases just makes me feel dirty when I see the academic dishonesty that goes on. Courts will take things out of context (much like law students, ha), manipulate language, and pick and choose “binding cases.” The best example of this is United States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008). The court basically says that, because a district court in another circuit (a lower court that is not bound by this court’s precedent) decided one thing, and this court cited that case for a sort of related proposition in another case, the district court case became very persuasive, if not binding, law.
It just leaves a bad taste in my mouth.
We all know ICE has done terrible things to people, even US citizens and LPRs. And so I think the rallying cry should be:
“Ice ICE, baby.”
I came up with this while I was sort of listening to a conference call in my boss’s office. I started to giggle and then had to stop myself.
More on my job later. Suffice it to say, I’m loving being in DC and working for LIRS and using all sorts of acronyms. The learning curve is amazingly steep. That’s all for now.
If anyone should go hang out with my cats, tell them hi from me and tell them I miss them. 🙂
I’ll be attending two conferences in the next month and a half, and I’m really excited about them. The one I’m going to this weekend is the Rebellious Lawyering conference at Yale. It’s a public interest law conference, and there are two lectures on immigration. And then I’m going to the ABA Section of International Law spring meeting in New York City. I don’t think I even need to talk about how great it’s going to be. There are public international law lectures and “young lawyer/law student” lectures, which are of particular interest to me, but then there are also corporate law and trades/customs law lectures, which could possibly be interesting too.
A recent case – Chen v. U.S. Atty. Gen., — F.3d —, 2008 WL 150205 (11th Cir. 2008) – discussed a woman’s application for asylum status. Chen lived in China and worked at a governmental family planning office. Her job was to watch over the pregnant women who had violated the country’s family planning policies until they were forced to abort the fetuses. After about a month of working there, she released a woman who was eight months pregnant and was subsequently fired. She feared worse, and so she fled to Thailand and then the US two years later (in 2005).
She applied for asylum status and was denied on the grounds that she had assisted in persecution and was thus ineligible. Chen at *2. She had the burden of proof for showing that those grounds did not apply to her case. Id. The standard for determining “assistance” was set out in Fedorenko v. United States, 449 U.S. 490 (1981), which dealt with a concentration camp guard. “An individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians.” Chen at *3 (quoting Fedorenko, 449 U.S. at 512 n. 34). The Eleventh Circuit set its standard as “a particularized, fact-specific inquiry into whether the applicant’s personal conduct was merely indirect, peripheral and inconsequential association or was active, direct and integral to the underlying persecution.” Id.
Comparing Chen’s situation to a case in the Second Circuit, the court determined that her actions amounted to assistance in persecution, supported by substantial evidence, especially because her job of monitoring the women was essential to the ultimate goal of forcing abortions upon them. Id. at *4. Her release of the woman was minimized to a single act that did not “absolve her of the consequences of her personal culpability for the previous assistance.” Id.
Perhaps the standard does not take enough factors into account. Chen may have taken on the employment voluntarily, but because of her coming so close to the government and then disregarding her job, she was persecuted. A change of heart should come into play when determining refugee status. When someone realizes that what they’re doing is wrong and changes their behavior accordingly, they should not be denied asylum. The standard seems too strict, and if the court will not recognize a person’s ability to at least begin to atone for their actions, then perhaps the entire concept of parole should be done away with. That might be dramatic, but why apply different standards to different groups of people?