Posts Tagged ‘Blake Ferger’

Critical and Analytical Thinking – A Paralegal Example

Monday, February 4th, 2013

Last week a law professor lamented to me that it seemed students were less and less willing to engage in true critical thinking, perhaps reflecting the role models of some of our more prominent politicians. He pointed out that the legal profession was a service industry, one in which the primary tools are the ability to read with comprehension, write clearly and concisely, and think analytically and critically. This, of course, applies to paralegals as well as attorneys, and is the focus of much of the instruction here at the Ole Miss B.P.S. program. A recent LinkedIn exchange provides a good example of both side – remarkably non-analytical and non-critical thinking by one paralegal and good, solid analytical and critical thinking by another. Note how the second paralegal, Blake Ferger, keys in on language that indicates bias, seeks facts rather than accept conclusions, deals with the primary source and “the actual legal definition,” applies the law objectively to the facts, and even reads the footnotes – all things that are to be expected of a professional paralegal:

First Paralegal: Kidnapping and sex with a minor not grounds for deporting illegal immigrants

Hard to believe but a U.S. federal appellate court has stopped the deportation of an illegal immigrant convicted of kidnapping , ruling that it’s not necessarily a crime of moral turpitude.
The decision, issued by the 9th Circuit Court of Appeals, is a 27 page opinion that is, in all honesty, quite hard to grasp. “This undoubtedly appears to be a difficult question at first glance,” it reads. “Kidnapping is a serious crime, and our instincts may be that it would meet the moral turpitude definition. Even for serious offenses, we must look to the specific elements of the statute of conviction and compare them to the definition of crimes involving moral turpitude.”
What? The definition of moral turpitude is: A phrase used in Criminal Law to describe conduct that is considered contrary to community standards of justice, honesty, or good morals. Attorneys can be disbarred for moral turpitude but, it appears, convicted illegal immigrants can’t be deported.
The case involves Javier Castrijon-Garcia who entered the United States illegally in 1989 and is the father of three American-born anchor babies. He has twice been convicted for driving with a suspended license and in 1992 pleaded guilty to attempted kidnapping. He received a suspended sentence of 300 days in jail and 36 months of probation.
Years after the kidnapping case, the Department of Homeland Security (DHS) earmarked Castrijon-Garcia for removal. He appealed but an immigration judge found that he was deportable because the kidnapping conviction is a categorical crime of moral turpitude. The Board of Immigration Appeals, the government’s final authority on immigration matters, agreed noting that it had previously listed kidnapping as an example of a crime of moral turpitude and that California’s penal code also defined it as involving moral turpitude.
But the 9th circuit disagreed, writing in its decision that precedent dictates that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.” The type of “simple kidnapping” that this illegal immigrant committed doesn’t necessarily involve such evil intent and harm therefore it doesn’t constitute moral turpitude, according to the San Francisco-based court.
The ruling orders the Board of Immigration Appeals, which is part of the Justice Department, to “conduct a modified categorical analysis” of the illegal immigrant’s crime. But the BIA has already determined that kidnapping is a serious enough crime that merits deportation, so the court seems to be ordering the BIA to make an exception or change the criminal code.
A few years earlier the 9th Circuit reversed a lower court ruling calling for the deportation of a Mexican immigrant convicted of having sex with a minor. In that ruling, the 9th Circuit claimed that while the crime violated state law and was unwise and socially unacceptable, having sex with a minor wasn’t base, vile or depraved enough to warrant deportation.

 

Blake Ferger • I would be interested to know the actual full circumstances of these cases. The phrase “anchor babies,” which has no basis in reality, is a huge flashing red warning that the author has an anti-immigrant ideology. For instance, was the kidnapping of one of the alien’s own biological children? Was the alien who had sex with a minor barely him/herself an adult? These are the kind of facts that would explain apparently unjust decisions which the author is attempting to exploit for outrage.

Anyone know of factual, unbiased background on the above cases? From somebody not pimping the “9th Circuit commie Californians LOL” angle?

Blake Ferger • Interesting, thanks. Well, as is usual with appellate decisions, it is short on facts and long on technicalities. The upshot appears to be, though the 9th Circuit was politer than this, that the Board of Immigration Appeals engaged in sloppy, lazy lawmaking (not surprising to anyone familiar with them), and rather than “ordering the BIA to make an exception or change the criminal code,” the 9th Circuit has actually told them to try again and do the job right this time.

The author was too lazy him- or herself to pull the actual legal definition of moral turpitude from the decision: “The Immigration and Nationality Act does not define the term ‘crime involving moral turpitude,’ but ‘courts and the BIA have generally defined [it] as comprising crimes that are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general…. Such crimes are of two types: those involving fraud and those involving grave acts of baseness or depravity.” (Grave baseness or depravity is things in the realm of murder, rape & incest.) The California kidnapping statute in question requires neither fraud nor grave acts of baseness or depravity. It might seem weird that “kidnapping” could not involve that, but as an example, the decision cites the upheld kidnapping convictions of angry black students who compelled university administrators to walk with them for a few hundred yards to address their complaints of a coach beating a black football player in the middle of a game. When this is the kind of kidnapping that is covered by the statute, then it is impossible to say with certainty that it qualifies under the federal standard of moral turpitude.

Lots of other interesting stuff in there, like footnote 8: “Only the Fifth Circuit has decided whether kidnapping is categorically a crime involving moral turpitude, holding that it is not. Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) [interpreting a Louisiana simple kidnapping statute similar to the California statute at issue].”

In short, the decision is only hard to grasp if you avoid reading the actual decision and instead stick to the sensationalistic headline.

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The COA opinion is here