In the last two weeks, I lost two cases at the First Circuit. Click HERE and HERE to read them. The decisions aren't too surprising, although the impact on the actual asylum applicants is substantial. It's really hard calling up the client and telling them that their cases are over and it's time to return to their home country, where they may very well face danger. I don't think the judges sitting on a court of appeals really understand (or have any interest in understanding) the human impact of their decisions.
(As an interesting side note, when I went to find links to these cases, I noticed that there are actually people out there blogging about these decisions. Check out this for example).
But, perhaps, it's not the job of the court of appeals to consider the human impact of a given case. Is it possible to decide a case based purely on the law? And should judges do it? Of course, when the law is on my side, I'd like the judges to stick to the law. And when the law is not on my side (and it usually isn't when it comes to immigration), then I'd like them to look at the facts. :)
That's the problem with immigration cases. The facts are often very compelling (just read the two cases above and I think you'll agree with me). But Congress didn't much like immigrants when it wrote the law; particularly, Congress didn't want immigration decisions to be subject to much judicial review. And this is truly unfortunate when you have a Department of Justice like we have now, who downsizes an incredibly overworked immigration appellate board; invents "streamlining" procedures so that there is less administrative review of decisions; and then appoints immigration judges not on the basis of their qualifications but solely on their political affiliation. A great system: incompetent judging, followed by little to no administrative review, and severe restrictions on judicial review! I really don't know what should be fixed first: a heightened standard of judicial review, an overhaul of the Board of Immigration Appeals, or a recall of some of the judges hired during the Monica Goodling era. The sad part is that none of that will happen.
In the meantime, we'll keep seeing decisions like those cited above.