Tuesday, September 01, 2020

Jaimes-Cardenas v. Barr (9th Cir. - Sept. 1, 2020)

I understand that when we write briefs as lawyers, we all try to put both the facts and our clients in the best possible light.  Judges sometimes do a similar thing.  They're not advocates, but nonetheless, when they write an opinion that "advocates" for a certain position, sometimes the opinion is a bit "tilted" as to what facts are conveyed and how they're set forth.

You see this most starkly (or perhaps most obviously) in death penalty cases.  Decisions that affirm almost invariably begin with excruciatingly long descriptions of the crime and the underlying suffering and focus on the offense and the victim.  Whereas decisions that reverse often somewhat minimize the offense and start out with a long personal history of the defendant and all his childhood troubles and the like.

You'll see the same things in other politically-charged cases, and sometimes in lower-profile cases as well.  Judges typically used to be lawyers.  Old habits are sometimes hard to break.

So I'm used to seeing somewhat one-sided versions of the facts.  I doesn't typically bother me much.  Par for the course.

Nonetheless, I thought this opinion was fairly striking on that score.

It's not that I'm not somewhat sympathetic to Judge Hawkins' view.  I am.

But even for someone like me, as I read the facts, I repeatedly had legitimate questions about how the recited facts were consistent with the "full" story.

Here's how the opinion recites the facts.  It's not long.  I'll put a few of my thoughts as I was reading the thing into brackets:

"Jaimes-Cardenas is a native and citizen of Mexico. He first entered the United States without inspection in or around 2008, and shortly thereafter met U.S. citizen Flora Rico. They coupled, eventually getting married and starting a family. [No problem. Totally fine. I get that we're making them sympathetic, using language like "coupling" and the like, but that's completely cool with me.] Flora, however, was addicted to methamphetamines, which Jaimes-Cardenas urged her to stop using. She responded with violence and abuse, threatening to call Immigration and Customs Enforcement (“ICE”) on him. One incident led to Jaimes-Cardenas’s arrest, after which he was transferred to ICE custody and voluntarily returned to Mexico. [I'm a little confused here; is Jaimes-Cardenas getting "arrested" -- did he commit a crime that's unmentioned in the opinion -- or is he just getting picked up by immigration and deported. Usually we say "detained" when it's just immigration. But whatever.] Less than a year later, he returned to the U.S. with the help of Flora, who was then pregnant with their first child.

After the child was born, Flora became increasingly abusive and controlling over Jaimes-Cardenas’s life. He suffered physical, emotional, and verbal abuse from her, but stayed in the relationship because of his children and love for Flora. [This reads a little one-sided, like it's coming from an advocate's mouth or purely one side's version of what happened, but okay.] Eventually, matters took a turn for the worse. Flora used more drugs and started selling drugs to support her habit. She left Jaimes-Cardenas and their children, only initiating contact when she needed money or was in trouble. After one particularly bad incident, the local Department of Human Services intervened, which resulted in JaimesCardenas losing custody of their six children (four biological) placed in foster care. [Huh? The opinion says the six kids get taken away from the father. But the opinion implies that the "bad incident" was from something only mother did. We generally don't take kids away from their father because their mother "left [father] and their children" and only "initiat[ed] contact when she needed money or was in trouble." It seems like we might be leaving out details about what the father allegedly did to lose his custody of the six kids. Rightly or wrongly, I'm sensing that there may well be more to the story here.] Flora later was arrested and convicted of possession of methamphetamine.

Jaimes-Cardenas then attempted to cut ties with Flora, but she showed up at his apartment to convince him to get back together with her. At the time, there was an active arrest warrant against her for failure to comply with the terms of her sentence. Jaimes-Cardenas had to go to work and left the apartment. Flora stayed behind, bringing in methamphetamine and drug paraphernalia. Later that day, Jaimes-Cardenas’s landlord informed him that police were looking for him because they found methamphetamine in his apartment. Despite Flora’s statement that the methamphetamine was hers, police arrested Jaimes Cardenas and charged him with possession, manufacture, and delivery of methamphetamine, as well as hindering prosecution for his failure to report Flora in light of her active arrest warrant. After his arrest, Jaimes-Cardenas’s counsel informed him that “he would likely face more detention by ICE and removal if he decided to fight the case.” He therefore pleaded to one count of possession of methamphetamine. [Was there really no argument at all that the drugs were his, or that he was also using? And it also seems weird that a lawyer would tell the client to plead guilty to a drug offense if he indeed was innocent as a way of avoiding deportation. Generally the way you stop getting kicked out is exactly the opposite: to plead not guilty to a drug offense and to fight the charges and prevail. Now, I wasn't there when the lawyer told him whatever he told him, so whatever, but the whole thing still strikes me as unusual, or at least a one-sided version of the facts.] 

The Department of Homeland Security (“DHS”) then initiated removal proceedings against Jaimes-Cardenas. [Which is exactly what you'd think they'd do after a noncitizen admitted to a drug crime.]"

Again:  I'm not Mr. Oh-An-Opinion-Is-Not-Perfectly-Neutral-What-A-Total-Horror type of guy.  I get that sometimes you frame the facts in a particular way (or, sometimes, they're framed for you by the particular procedural context -- e.g., on a summary judgment motion -- though that's not the case here).

But today's opinion nonetheless seemed to me to be at the relatively far end of the spectrum on this point.