Will A Change In Amicus Practices Make Immigration Courts A Little More Fair?

Which court was asking for amicus briefs from identified hate groups?

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I’ve written before about immigration courts, whose dockets one immigration judge characterized as “death penalty cases heard in traffic court settings.” And I mentioned in that previous post that the quality of representation for immigrants in these cases is often low, and that immigrants’ win rate before the Board of Immigration Appeals is even lower.

Given that the deck already seems stacked against immigrants in the immigration courts, one might think that the Board of Immigration Appeals would be cautious about maintaining an appearance of propriety. But recent events in the decade-old Matter of Silva-Trevino suggest that that wasn’t the case — at least until now.

In Matter of Silva-Trevino, a somewhat tricky legal question — how do you determine whether someone has been convicted of a “crime involving moral turpitude?” — has led to years of confusion. First, an immigration judge found in 2006 that Mexican national Cristoval Silva-Trevino had been convicted of a “crime involving moral turpitude” (specifically, the crime of “indecency with a child”), rendering him ineligible for certain immigration relief in the United States. The upshot: Silva-Trevino would have to be deported.

Next, though, the Board of Immigration Appeals vacated the immigration judge’s finding on the ground that the crime of “indecency with a child” was broad enough that it did not categorically involve moral turpitude. The upshot: Silva-Trevino could return to the immigration judge and seek relief after all.

But then the Attorney General took up the case and issued an opinion vacating the Board of Immigration Appeals’s decision and remanding for the immigration courts to apply a new “framework for determining whether an alien has been convicted of a crime involving moral turpitude.” The upshot: things were looking worse for Silva-Trevino again.

So the case ended up back before an immigration judge, who applied this new framework and found that Silva-Trevino had committed a crime involving moral turpitude. And then the case ended up back at the Board of Immigration Appeals, which affirmed the immigration judge’s decision. The upshot: Silva-Trevino would have to be deported.

But then, last year, the Fifth Circuit tossed out the preceding nine years’ worth of administrative decisions on the ground that the Attorney General’s “framework” departed from the text of the statute it was supposedly administering. The upshot: who knows?

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In the face of the Fifth Circuit decision (and similar decisions in other circuits), this past spring the Attorney General officially vacated the previous order establishing a moral-turpitude “framework.” But, absent that framework, precisely how the immigration courts should consider the crime-involving-moral-turpitude question is unclear. But the Board of Immigration Appeals nevertheless must figure out whether Silva-Trevino has in fact been convicted of a crime involving moral turpitude.

To help it make this decision, in late April the Board solicited two amicus briefs: one from the uncontroversial practitioners group, the American Immigration Lawyers Association, and one from the significantly more controversial group, the Federation for American Immigration Reform (“FAIR”). This second invitation proved to be a proverbial prod at a hornets’ nest.

Though FAIR describes itself as “a national, nonprofit, public-interest, membership organization of concerned citizens who share a common belief that our nation’s immigration policies must be reformed to serve the national interest,” others describe it differently.

The Southern Poverty Law Center, for example, calls FAIR a “hate group.” Its website says this about FAIR:

Although FAIR maintains a veneer of legitimacy that has allowed its principals to testify in Congress and lobby the federal government, this veneer hides much ugliness. FAIR leaders have ties to white supremacist groups and eugenicists and have made many racist statements. Its advertisements have been rejected because of racist content. FAIR’s founder, John Tanton, has expressed his wish that America remain a majority-white population: a goal to be achieved, presumably, by limiting the number of nonwhites who enter the country.

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Naturally, then, the Southern Poverty Law Center took umbrage at the Board of Immigration Appeals’s affirmative request for an amicus filing from FAIR. It joined with several pro-immigrant nonprofits to ask the Board’s permission to file its own amicus brief. And this joint amicus brief asked only that the Board “end its practice of affirmatively requesting amicus briefs from FAIR” (a practice that some observers have noted goes back “at least a decade”). The group’s basic argument was straightforward enough: “The Board’s affirmative solicitation of an amicus brief by FAIR undermines the professional reputation of the Board, suggests the appearance of impropriety, and does not assist the Board in considering the merits of the case.”

And apparently that argument carried the day: The groups filed their brief just last month, and by June 22 the Board of Immigration Appeals had amended its website to suggest that instead of asking for amicus briefs from particular parties, in the future it will issue general calls for amici via social media and an email list.

It’s still not clear what will happen — or what should happen — to Cristoval Silva-Trevino. But on the very limited issue of the Board of Immigration Appeals’s soliciting briefs from FAIR, the Southern Poverty Law Center has declared victory. It issued a statement quoting Staff Attorney Eunice Cho: “We are pleased that the board has stopped giving such a platform to this vitriolic ideology.” And indeed, whatever does happen to Silva-Trevino, the immigration system has now gained at least an improved appearance of propriety — though whether it’s fair is still up for debate.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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