As awful as one might view the sausage-making in a criminal courtroom, it’s downright sanitary compared to the slaughterhouse of immigration court.  For United States citizens, even those whose backsides have left a permanent imprint in the courtroom bench, there’s little concern about it.  After all, they’re immigrants. They’re not “real Americans,” so what difference does it make what happens to them.

As states craft laws and send out police to further harass anyone with a vowel at the end of their name, an accent, or (OMG), a dark complexion, there aren’t many “real Americans” who worry about their treatment.  At best, they have their own problems. At worst, they applaud such indignities, better to get rid of those “illegals,” as any immigrant is called, even if they’re just hijacked off the street and thrown on a bus to Tijuana. Adios, muchachos.

Nonetheless, the United States actually maintains a legal system of sorts for the purpose of determining whether immigrants, individuals who are here lawfully but have yet to attain (or, for whatever reason, have chosen not to try) naturalized citizen status.  You remember citizen status? It’s what your grandfather was granted when he wasn’t exactly a desirable neighbor, yet he got his chance in a nation that embraced him when his own was all too happy to see him go.  The nation that treated him fairly, when there was little he could do to obtain fairness on his own.

As the  New York Times editorial notes, our very own immigration courts have become a stronghold of arbitrariness.

In Judulang v. Holder, the failure was total: a decision on deportation that made no sense. As Justice Kagan pointedly wrote, “We must reverse an agency policy when we cannot discern a reason for it.” That judgment, unfortunately, applies to much of the snarled and absurd processes in the immigration courts.

Way back when, there was a safety valve for non-citizens who were convicted of a crime.  Criminal defense lawyers may not have known much about immigration law, but we all knew §212(c), an application for relief from the sometimes onerous punishment of deportation following a criminal conviction.  But they’re criminals, you say. They don’t deserve to remain here, in the greatest country the world has ever known.  And when the citizen, one step removed from immigrant status, does the same dirty deed, you can hear them screaming about due process throughout the courthouse.

There were certainly bad dudes with a green card, who came here two weeks ago to sell a few kilos or knock over a liquor store.  But there were also people who arrived at two weeks old and lived here for the next 27 years, working hard, paying taxes, marrying the girl next door and having beautiful babies. The only thing they didn’t have was their citizenship papers. We treated them both the same, except that the latter could find solace in a §212(c) waiver of deportation.

Then Congress repealed it, because it was too reasonable, but the door was left open just a tiny crack under the assumption that the folks who ran the immigration court cautiously use it to limit the worst of the new laws harsh applications.

In determining whether Mr. Judulang could apply for a waiver from deportation, the board looked to a repealed law, which dealt with excluding aliens from admission to this country. If the basis for deporting an alien is “essentially equivalent” to a basis in the law for excluding someone, the board said, the deportee could apply for a waiver. But it ruled that Mr. Judulang could not because the grounds for his deportation were not comparable to the grounds that apply to exclusion.

Justice Kagan properly pointed out that this analysis was essentially arbitrary. The board made “an irrelevant comparison between statutory provisions,” which had nothing to do with Mr. Judulang’s fitness to remain in the United States. Instead, it turned a deportation decision into a “sport of chance,” like “flipping a coin — heads an alien may apply for relief, tails he may not.”

The immigration lawyers I know have told stories about the bizarre and arbitrary treatment of their clients for years.  They talk about immigration judges who make no sense at all, who wave their hand and make any semblance of law disappear.  The immigration judges treat the lawyers only slightly better than the treat the clients, who they treat like dirt.  That such a fiefdom exists in the underbelly of the legal system, where immigration judges are largely ignored by real judges under the claim of “deference,” and where the lawyers, usually grossly overburdened and underpaid, struggle to explain life down the rabbit hole on its best day, are more likely to be chastised for sloppy work in comparison to other federal practitioners rather than be appreciated for managing to get anything done at all.

The the Supremes took this case at all is something of a shock.  Nobody wants to look too closely at the festering boil of our immigration courts. That a unanimous Supreme Court held Board of Immigration Appeals’ application of §212(c) to be “arbitrary and capricious” is absolutely extraordinary. 

It’s ironic that the system developed to deal with those who come here seeking a better life for themselves and their children are subject to the very worst our legal system can dish out.  With all the problems confronting the nation, not to mention the ones that weigh heavy on lawyers in trying to keep a fragile legal system from failing altogether, the nastiness of life in immigration court rarely makes our radar.  That the Supreme Court, unanimous at that, smacked the BIA for its arbitrary treatment of immigrants under §212(c) should make us proud.

This is no longer a nation that thinks well of immigrants, and concern for their fair and lawful treatment isn’t going to get anyone elected to dog catcher.  And yet the Supremes did right by them, and by us.  If only we could clean up the rest of the cesspool of immigration court.  But then, you’re a citizen, so what do you care?