Sometimes, you just know. For me it was the end of February 2013. I was sitting at the attorney's table in Judge DeVitto's court room in the Eloy Detention Center. My client was a 68-year old man with arthritis who had lived in Arizona since 1971. He had been in Eloy before and was then granted voluntary departure. He was escorted to the border and returned a few weeks later in the summer of 2002. Now he had had another DUI and he was back in Eloy.
His wife and daughter had come to my office a few weeks earlier. They talked to me through an interpreter on the phone. The wife was crippled and in a wheelchair, the daughter was mentally handicapped.
From what they told me, it didn't seem right that this man was being held again and that he hadn't been granted status the last time he was in Eloy (in 2002). I thought I could get him out on bond and then sort out the rest. One DUI did not mean mandatory detention.
Boy, was I wrong. At the bond hearing, ICE brought in the entire criminal record and DeVitto refused to set bond, because he considered my client a danger and based on the criminal record he also didn't believe my client had a chance to win his case. What was that criminal record? Two possession of marijuana charges from May 4 and May 10, 1982 (the conviction from 1992 is silent as to whether my client is convicted of two separate charges - the record is unclear) and a couple of DUIs from the 1990's and 2002.
Filing an appeal on the bond decision could take months and when we went back to court a few weeks later, DeVitto looked at me as if I was some kind of moron. He had this look of disdain on his face, while I was trying to make something out of nothing. I knew we were dead in the water with the two possession charges, if ICE could prove they were separate offenses. However, as I stated, the record was vague and no additional evidence was available from 1992. The ICE attorney, young and healthy, had nothing but arrogance in his body. There was no intelligence there, just righteousness. He pulled the new trump card that the 9th circuit had just given the government: Young v Holder. The case that has put everything upside down, the case that is putting a witch hunt to shame.
Young v. Holder! The decision by the 9th circuit that has ended fairness and justice in the immigration court proceedings. The decision that is the scratcher ticket that makes ICE an instant winner. With Young v Holder the government cannot lose. In the conclusion of Young v Holder, the 9th circuit states that when the record is inconclusive "it is possible that Petitioner’s prior conviction constitutes an aggravated felony; it is also possible that it does not". In other words, if it is unclear that you've done something, you'll have to prove that you didn't do it. If the record is inconclusive as to whether you're a witch, you'll have to prove that you're not. The court believes this to be a correct interpretation, because a Respondent in the court room has the burden of proof eligibility for relief. However, it is the world upside down, since it is in most cases impossible to prove a negative when the evidence is not available. OK, I may have understood the court's position with regard to an aggravated felony. However ICE and the Judges now use it for any possible bar to eligibility for relief. In this case two possible possession charges from 1982 (please note that the convictions are vague).
The Judge looked at me again and said "Mister Asser". I was silent. I felt my blood pressure, I needed to breath, my gut hurt, I clenched my ass, I wanted to fart and run. I looked down and literally hung my head. I don't know if anybody noticed, it happened within a few seconds, but then I answered "nothing further, your honor", thinking "go fuck yourself". That's when I realized. I was done. I will never set foot in Eloy again. If they need Young v Holder to win, if the government is being handed the authority by the 9th circuit to conduct a witch hunt, there's nothing more I can do. I give. I wish you well, but I don't want to have any part in this charade. I'm done.