I'm fairly confident that Judge Kleinfeld gets this one right, and that Jose Valeriano -- a 34-year old Mexican national with three United States citizen children -- isn't entitled to equitable tolling, and hence can and will (and, legally, should) be deported to Mexico. Sure, Valeriano hasn't committed any criminal offenses here, and sure, he might perhaps have a defense to deportation on the merits. But his lawyer apparently filed the notice of appeal six days late (and then lied about it), and then waited too long to file a motion to reopen. So deported ye shall be.
All of which is how the law likely declares it should be. And hence, as a judge, you're largely obliged to make it so. The first three pages of the opinion nonetheless starkly highlight that, sometimes, people -- and their U.S. citizen children -- may well be deported from their homes and country based not upon the merits, but rather upon the (sometimes inexplicable) mistakes of their counsel. Which is sad.
Sure, technically, in this area, you're responsible for your counsel's errors. That's (basically) the law. Still, it doesn't seem very nice -- or, on occasion, very fair. Especially given the type of counsel that uneducated, poor illegal immigrants are generally able to afford. Which is to say: Not so good.
None of this is to claim that Valeriano shouldn't be deported. He probably should. But the first three pages nonetheless make you wonder. Or at least force you to recognize the occasional -- and stark -- injustice that must surely arise in at least some deportation proceedings.
