Tuesday, January 07, 2020

Park v. Barr (9th Cir. - Jan. 7, 2020)

I understand why the panel comes out the way it does here.  To do otherwise would seem clearly inequitable in the present case.

But I wonder if the panel's holding will make it worse -- substantially worse, even -- for the vast majority of people in similar situations.

It's an extremely sympathetic claim.  Ms. Park is a citizen of Korea, marries another citizen of Korea, and they come to the United States.  They overstay their visa, but after 11 years of marriage, they get divorced.  Since they're both from Korea (albeit in California at the time), they go to the consulate of Korea and jointly request a divorce, which is granted.  All this is fine under the law of Korea.

Ms. Park subsequently marries Mr. Park, a U.S. citizen.  There's no doubt that both Ms. Park's first marriage as well as her second marriage are bona fide.  She's not just trying to stay in the U.S.  Since she's now married to a U.S. citizen, she requests to become a citizen.  Which she's entitled to do.

But here's where it gets ugly.

The United States takes the position that even though her marriage to Mr. Park was a real one, she accidentally was never "really" divorced from her first husband.  Not because it was a fake divorce or anything.  But rather because since she resided in California, she couldn't "actually" obtain a divorce from Korea, even though both her and her husband were Korean citizens.  Accordingly, even though she indisputably tried (and intended) to get divorced, she never actually did.  Thereby making her second marriage invalid (since she was already married), which means she gets deported and can't become a U.S. citizen even though she legitimately loves and has married one here.

You get the inequity of that, right?

So the panel reverses that decision.  Holding that, nah, she was in fact validly divorced, and hence was validly married to her second husband.  Thus can stay.

You can see why you might well want the case to come out that way.  Deporting someone who's legitimately married to a U.S. citizen and has tried to do everything associated with her marriage properly just seems incredibly harsh.

The problem is precedent.  As well as the doctrine of unintended consequences.

The reason the U.S. thinks that Ms. Park couldn't validly get divorced at the Korean consulate was because she was in the United States at the time (specifically, California) and had been there with her husband for a long time.  That made them, according to the United States, California residents.  And if both you and your spouse are residents of California, guess where you have to get divorced?  You got it:  California.  Not the Korean consulate.  That's why the U.S. thought the divorce (and thus the second marriage) was invalid.  Because Ms. Park was a resident of California.

And there's totally good precedent for that position.  Since California has indeed squarely held that even if you're an undocumented immigrant, if you live in California and intend to stay here, you're a resident of California for family law purposes.  And hence can get divorced here.

You see the equity of that position, right?  Imagine how bad it would be if you're an undocumented immigrant living in California -- say, for 20 years -- and your spouse starts abusing (or even merely ignoring) you, and you fall in love with someone else and want to marry them.  It'd be super, super bad if California held that you couldn't get a divorce in California since you weren't a citizen here, so had to stay married until and unless you could go back to Cambodia or China or Mexico or whatever and get a divorce there.  Otherwise you're required to stay married to this person you don't love (and perhaps even affirmatively hate).

That's precisely why California has squarely said that, for divorce purposes, you can indeed be a resident of California even though you're undocumented.  And hence get divorced here.

But here's the rub.  If that's the rule -- and it certainly is the rule in California -- then Ms. Park's divorce was indeed invalid.  Because she was a California resident, and thus couldn't get divorced at the Korean consulate.

Which means the only way to obtain the "right" result here (i.e., the one that confirms her divorce and subsequent marriage) is to find these California cases inconsistent with federal law.  Which is what the panel does.  Meaning that Ms. Park is not a resident of California, so her divorce was valid, so her remarriage was valid, so she can stay.

Which is great for Ms. Park.  But affirmatively terrible for everyone else.  Since, under today's ruling, undocumented immigrants are not longer deemed "citizens" of California for purposes of requesting a divorce.  So they can no longer get divorced here.  Since federal law preempts California's law to the contrary.

And this from a panel of left-of-center judges.  Who have now articulated a ruling that, while good for Ms. Park, is almost certainly objectively bad for pretty much every other single undocumented immigrant.

And notice which way the parties lean.  The panel is holding that U.S. law preempts California law.  Yet it's the United States -- the DOJ -- arguing exactly the contrary.  Which says that federal law does not preempt California's law that deems unauthorized immigrants to be California residents for the limited purpose of obtaining a divorce.

Unusual.  To say the least.

To recall, it's understandable why the panel wants to hold the way it does, because it wants to help the sympathetic Ms. Park.  But in doing so, it needs to (1) overrule contrary California precedent, and (2) articulate a holding that's probably not especially persuasive.  Which perhaps explains in part why the opinion is per curiam and unsigned.

But it also makes for a decision that seems bad for everyone else.  And I'm confident that's not what the panel intended.

Which is probably why the opinion repeatedly says that the panel is holding the way it does "in the circumstances of this case."  That's likely the panel's way of trying to help future panels hold that the decision (read: precedent) here hopefully won't stop unauthorized aliens from obtaining divorces in their state of residence in the future.

The problem, however, is that there's no actual (or at least principled) way to distinguish today's case from those future cases.  If federal immigration law preempts California's laws about residence in the divorce context, and means that unauthorized immigrants are affirmatively not residents of California for purposes of divorce, then by definition they can't obtain a divorce here.  Because only residents can obtain a divorce in this forum.  There's no way out from today's holding.

So, yesterday, if you were an undocumented immigrant who wanted (or needed) to divorce your similarly-situated spouse, you could go to a court in California and validly obtain one, pursuant to state law.  That's bad for Ms. Park, since it's not exactly what she did (she went to the consulate for Korea).  But it's good for everyone else.

But after today, undocumented immigrants who want (or need) a similarly divorce cannot go to a California court.  Because the panel holds that federal law precludes such persons from being deemed "residents" of California for purposes of divorce.  Which means that Ms. Park's particular divorce is valid.  But also means that everyone else's divorce (from a California court) is not.  Which is bad for pretty much everyone other than Ms. Park.

Again, I get that the panel wants to reach the holding it does.  And that it tries to input subtle points to help distinguish this case from others.  But I'm not at all persuaded that those purported distinctions and limitations in fact accomplish their objective.  Either in a principled manner or at all.

Which in turn means that this opinion could turn out to be substantially bad for unauthorized immigrants in California.  Really bad.  Even though the panel's intent is clearly the exact opposite.

Which is the way things go sometimes when you're itching to achieve justice in a particular case.