My reaction is pretty similar to Judge Noonan's.
Hubert Cole is a former gang member born in Honduras who entered the United States at age eleven. He's now 40 years old, and has a lengthy criminal history in the United States, beginning when he was a juvenile. He joined the Crips, an African American gang, when he was in prison, and got tattooed with numerous Crip tattoos, including a teardrop under his eye, a G behind his ear, and tattoos on his calves, arms and back. He was shot by rival gang members in 2007, and Homeland Security wants to deport him based upon his long criminal history. He seeks asylum, claiming that he's potentially vulnerable to attack in Honduras from rival gang members who were also deported there and recognize his Crip tattoos.
Judge Berzon writes the majority opinion, noting that tattoo removal is a potentially long and painful process, is somewhat sympathetic to Cole's plight, and remands the case to the BIA for a better reasoned opinion. Judge Callahan dissents, arguing that Cole doesn't really face any danger in Honduras and that the BIA's opinion was reasonable.
Judge Noonan writes a brief concurrence. He says that if the tattoos are the problem, then Cole should get rid of them. That the BIA should potentially allow Cole some time in the U.S. to get them removed before he's deported, but if they do -- or if Cole declines -- then off he should go.
This seems pretty reasonable to me. I'm not especially sympathetic to a dude with a huge criminal history who claims to be entitled to stay in the United States because it's a pain to laser your extensive tattoos. I would have hoped you had thought about that before you decided to paint your body with Crip slogans. I also imagine that getting them removed causes a lot less pain than, say, getting shot. I'm not too excited about a claim that one's voluntary decision to visibly associate yourself with a criminal gang means that you are now entitled to stay in the United States forever. Even if reversing your (own) decision would cause you a fair amount of hassle and inconvenience.
I'm sure that Cole's argument is that he'd just love to remove the tattoos if he could, and as a result be deported to Honduras forever, but, shucks, I just can't because it's too painful.
Plenty of people get tattoos removed because they're a sign of youthful indiscretion. Cole's can do the same. Especially since his indiscretions were even more indiscreet than your average person.
