Given his paying job, one might not expect Peter Afrasiabi to be the author of a passionate new book about the inadequacies of our immigration system. As a founder of the entertainment and intellectual property law firm One LLP, Afrasiabi is often busy representing artists and entertainment companies in copyright, trademark and other IP disputes.
But the Newport Beach-based attorney has been irked by immigration cases ever since he clerked at the 9th U.S. Circuit Court of Appeals, where he witnessed cases as they arrived from immigration courts. He has handled immigration cases on a pro bono basis ever since entering private practice. In 2000, he started a clinic at Chapman University School of Law that dealt primarily with immigration appeals. (Public Counsel awarded him “Advocate of the Year” in 2002 for his pro bono immigration efforts.)
“Over time, the real breaks in the system became more and more apparent, and I have kept at it because this is an area of law that remains in desperate need of help,” Afrasiabi says. “There are people with serious constitutional rights at issue but who are ignored in our broad policies that sweep up innocents in the large-scale efforts to deport in a broken system.”
He now serves as director of the Appellate Litigation Clinic at the University of California, Irvine, School of Law, where he is training a new generation to handle immigration appeals (among other cases.) Afrasiabi’s dual roles as pro bono immigration advocate and prominent IP attorney provided the foundation for his new book,"Show Trials: How Property Gets More Legal Protection Than People in Our Failed Immigration System," released this month.
In an excerpt provided to Lawdragon, Afrasiabi tells the story of Diego and Juanita Alvarado, who came to the United States with their one-year-old daughter in 1989, then had three more children born in their Los Angeles suburb. When they came before an immigration court in 2000, they argued that their deportation would cause the family unusual hardship. The immigration judge disagreed. Afrasiabi handled the appeal before the 9th Circuit. The law prevents constitutional courts from reviewing hardship rulings, which led Afrasiabi to base the appeal on an alleged constitutional violation, specifically, a violation of an accepted right “to family integrity and unity.”
Lawdragon: Can you tell our readers how their case was resolved?
Peter Afrasiabi: We lost the case in the Ninth Circuit because the court concluded that the constitutional challenge was an improper attempt to get around Congress’ elimination of jurisdiction. As a result, no court ever assessed the constitutional rights of the children and family, and the executive’s order of deportation stood as final and unreviewable for the federal court.
LD: What has been the pattern for how these types of challenges to deportations are faring before constitutionals courts?
PA: The cases are regularly dismissed for lack of jurisdiction and courts have not been willing to entertain the constitutional challenges given Congress’ elimination of jurisdiction. This outcome is common, which is why Judge Pregerson dissented in the referenced 65 cases that were organized to address the constitutional argument we mounted, and he continues to dissent today in similar cases. When there is appellate review in other types of cases, however, we also see that the federal courts reverse at higher than normal rates, precisely because the immigration courts are too error-prone.
LD: For those less familiar with the immigration system, why are these types of challenges even necessary in the first place?
PA: The ability to appeal is critical to insure that errors do not go unremedied. It is critical in our state and federal courts addressing property disputes, and it is an absolute right across all jurisdictions. In immigration cases, the need to appeal in all cases is even greater because the data demonstrate that, when appeals do occur, the immigration courts are reversed on average twice as much as our federal courts in their other cases, precisely because the judges are relatively underqualified compared to our district court judges. At times over the last decade, the reversal rate has been as high as 30-40% for immigration courts when the standard reversal rate is 10-15%.
Studies have also demonstrated statistically biased decision making by immigration judges, at rates that are simply shocking. For example, a female asylum seeker has a 50% greater chance than a male. Appellate rights to challenge the decision of the Executive courts in these cases, like that of the Diego’s, raise critical questions about the right to access American democracy under the limited legalization laws that we have. The effect of denying people one right of appeal to a neutral federal court is critical to avoid the deep insulation that otherwise is given the decisions of error-prone immigration courts.
LD: The subtitle of your book seems to explain it – nevertheless, can you give a rundown of your main contentious?
PA: The main contention is that people in immigration court get less due process than property in federal court, yet their cases raise important life and liberty questions of a constitutional dimension. Why and how we got here is important to find a way out. Fundamentally, we have not as a society demanded that the same basic protections we give property or criminal defendants when their liberty is on the line be also given to immigrants who have equally important constitutional liberty interests at stake in a massive range of cases. The broken system is a function of all the players within it. We start with the immigration judges who are seriously underqualified compared to federal judges addressing equally important life and liberty type cases. They are not subjected to complex screening like our federal judges at the hiring phase, they can get hired after seven years of legal practice (not even necessarily practicing in immigration) compared to a small-claims state court judge who at least needs 10 years of experience.
As a result, not surprisingly, they are reversed at staggeringly higher rates than our other judges. Then we look at the law itself; it has similarly been constricted to the point that we now have a regime that mirrors one that we had 70 years ago which all political constituencies then deemed abhorrent to American principles of justice and moved to fix. We deny the right to appeal an Executive decision to a neutral federal court in a huge swath of cases that raise constitutional and deep moral issues. At the same time, we have built a singular and excellent appellate system to only address valuable property cases, such as patents.
Within this immigration legal system then, we then consider the lawyers who appear before the immigration judges. We see that government lawyers are overzealous, not subject to sanctions or adverse fee awards for improper behavior, nor are they bridled by standard mechanisms we have in our other legal systems, such as mandatory mediations to cut through frivolous positions. And they take on immigrants lack counsel 60 percent of the time. On the private bar side, we see that the lawyers are overworked and underpaid and have vastly different compensation to other lawyers without any right to fees for prevailing or without a government compensation system as we have for criminal defense lawyers, and they are in an immigration legal culture where courts accept mistakes and errors in ways we would never accept in other legal regimes. We see that they are subjected to discipline for malfeasance at significantly higher rates also. The conflux of these events creates a system that does not dispense justice properly, and instead permits “Show Trials.”
LD: Is there anything about the immigration system that works?
PA: In terms of the immigration court system compared to what we expect for our other constitutional rights in our federal courts, not really. And that is the sad reality. Given the bedrocks that the current system is built on, it fails and is not capable of dispensing justice properly, in my opinion.
LD: The Obama administration claims that, while it is deporting more people, it is focusing on deporting criminals and less interested in breaking up families, and thus seems to be portraying its policies as more humane. Does this match your assessment?
PA: It’s hard to have a humane system that deports nearly 300,000 people in a year when the entire court system and governing laws are not built or designed to function in a humane way. President Obama’s policies are certainly better, including his attempt to get the DREAM Act passed, but the problem is that discretionary enforcement policies (such as choosing criminals over families) are not the law, they are simply discretionary decisions that the administration is taking but which another administration can and would reverse on a whim. And because they are discretionary, they offer no real protection to the citizen children and families who risk de facto deportation or the children and young adults who came here as babies yet are forced to live in the shadows of society and denied full political participation. Only changes in the law can accomplish real reform and build a humane court system.
LD: How would you rate the two main candidates (President Obama and Gov. Romney) on immigration policies, and what would be your strategy for “immigration reform”?
PA: They are polarized on Arizona’s SB 1070 obviously, and I believe President Obama’s immigration policies are better than Gov. Romney’s because President Obama is genuinely trying to seek positive change. For court reform, it is as outlined in my book – better judges, better behaved government lawyers, the same incentives for the immigration bar we give to the domestic copyright or civil rights bar, a right to an attorney for a noncitizen in deportation where the case raises life and liberty issues, and real federal court review rights reinstated.
For broader reform, I think we need to reconsider policies we once had that recognized that migration is circular and seasonal and reinstitute the type of work programs we had in the 1960’s (and earlier), as opposed to building walls that make it less likely one will leave once entering and which are incongruous with our open trade preferences. I think the recent Pew Hispanic study that demonstrates we are at net zero or even negative migration due to economic underpinnings may be important to help refocus the larger immigration reform issues. When we see immigration as a labor-driven response as opposed to a national security issue, our policies can reflect that reality, but when immigration is part of the DHS as it is in the post-9/11 world as opposed to the Department of Labor, where it was once housed, we inevitably see a system that has become increasingly harsh.
LD: Do you see any basis for hope? Would you tell younger lawyers to try to get into this field of law?
PA: Absolutely. Political debate on immigration is fevered, but it is fevered on all sides and I think that is how we have the potential for reform. I think President Obama has championed the Dream Act and will continue to do so, and I think in a second term he can really tackle the immigration court system and larger macro immigration policy issues so that we can harmonize the legal system with our other legal systems. I would certainly encourage young lawyers to get involved in immigration law, but read my book so you go in eyes wide open. It is an area of law that is rich in history, is interwoven with our core concepts of what it is to be an American, and a forum where young lawyers can really make a difference with hard work and diligence and also get great practical experience.