Monday, November 29, 2021

U.S. v. Mora-Cobian (9th Cir. - Nov. 29, 2021)

We're all back from the long Thanksgiving weekend.  Condolences to those who had to work on Friday.

This year, Thanksgiving fell on Evacuation Day, which (unlike Thanksgiving) is always November 25.  Evacuation Day used to be the big holiday in November, but gradually got eclipsed by Turkey Day.  Oh well.  Regardless; here's to foreign troops leaving our soil.  (Though, to recall yet another war, they came back fairly rapidly.  But, thankfully, left again; no holiday for that one, though.)

I mention Evacuation Day because I thought about it when I read the opinion from the Ninth Circuit that came out this morning.  It's not about foreign troops; instead, it's about Jorge De La Mora-Cobian.  He's a guy from Mexico who came to the United States but got kicked out five years later for getting a DUI.  He stayed in Mexico for over a decade and made a life there.  But on July 17, 2016, he presented himself at the San Ysidro port of entry -- alongside his wife and three children -- and asked for asylum.  He said that he'd been kidnapped by members of the Nueva Generación gang in Mexico, who cut off one of his fingers and sent it to his wife with a ransom demand.  (I suspect that this is a pretty credible claim, since it's hard to fake missing a finger.)  The gang came back and demanded more money, and two days later, Mora-Cobian and his family came to San Ysidro and requested asylum.

What does all this have to do with Evacuation Day?  Maybe not a massive amount, since Mexican troops have never really invaded the United States.  (Indeed, vice-versa.)  But the holiday popped into my head because on the actual evacuation day in 1783, George Washington celebrated the event with a dinner at Fraunces Tavern in New York City, alongside around a hundred well-wishers.  At that event, there were a series of toasts -- thirteen, in all.  The "Thirteen Toasts".  What Washington and his crew were the most thankful for after years of bitter warfare and upon finally obtaining liberty and freedom in this new nation.

Most of the toasts were to the usual suspects (at the time):  the new United States of America, the King of France (no small help in the war), the King of Sweeden (sorta helped), things like that.  But the eleventh toast was what popped to my mind when I read today's case:

"May America be an asylum to the persecuted of the Earth."

You can see why Mora-Cobian and his family want to come to America.  There's no doubt that they're persecuted.  Maybe not by an actual government, but persecuted regardless.  But we don't grant him or his family asylum.  We instead leave them to the vicissitudes of Mexico, sans a finger.  And when, with understandable fear for what will happen there, he comes to the United States anyway, we put him in prison, and the Ninth Circuit affirms.  (All that's in addition to the time he spent in detention in Georgia, Arizona and California when he originally requested asylum.)

Which may well be what the law requires.  On the legal merits, it's tough to find fault with Judge Tallman's opinion.

But my mind nonetheless hearkened back to Washington's celebratory toast.

So I thought I'd mention it.  Particularly as we return from the holiday weekend.