Pro Se at Your Own Risk

The first rule of bankruptcy ought to be: Do not file for bankruptcy unless you have a clearly defined goal you are trying to accomplish. Maybe the bank is about to foreclose on your house or repossess your car. Bankruptcy may be able to stop (or at least delay) those things. Which leads me to the second rule: Do not file for bankruptcy unless you are confident that it will help you accomplish your goal.

Sarah Katherine Sussman lived on Clark Avenue in Tampa, Florida. She held title to the property as trustee for The Sussman Family Trust Living Trust. The Trust had obtained the property from Sarah’s mother, Teresa M. Gaffney, after her father, John J. Gaffney, died in December 2011. For whatever reason (the opinion does not say), the administrator of John’s estate wanted to undo that series of transfers. The administrator sued Sarah and Teresa in state court and obtained a final judgment on October 16, 2017, ordering that title be returned to John’s estate and that Sarah be evicted. Sarah appealed and moved to stay the judgment pending appeal, but that motion was denied. So, on October 24, she filed a pro se petition for bankruptcy, hoping “to obtain a stay of eviction from [the] property.”

It’s easy to see why she did that. Section 362 of the Bankruptcy Code says that the mere filing of a petition for bankruptcy automatically stays “the commencement or continuation” of any lawsuit against the debtor, the “enforcement, against the debtor or against property of the estate” of an existing judgment, and any act to obtain possession or control of property of the estate, among other things. 11 U.S.C. § 362(a)(1)-(3). It seems like an eviction would be the enforcement of a judgment against the debtor, so filing for bankruptcy should have kept her in the house. Right?

Not necessarily. The stay is broad and it is powerful, but it does not cover absolutely everything that might be related to the debtor or the bankruptcy. One major limitation is that it only applies to legal and equitable interests “of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (emphasis added). The automatic stay does not automatically undo things that happened before the petition was filed. There may be other procedures and remedies available to address those things, but the automatic stay does not automatically un-foreclose your house or un-repossess your car. You must file the petition before the foreclosure or repossession happens. Evictions are a little different. Unlike foreclosures and repossessions, evictions generally require a judicial determination of the right of possession before the eviction can occur. In this case, the state court determined that John’s Estate had the right of possession of the Clark Avenue house before Sarah filed for bankruptcy. Accordingly, the bankruptcy court, the district court, and the Eleventh Circuit all held that the bankruptcy petition would not undo that judgment or stop the eviction.

The Eleventh Circuit said that she filed for bankruptcy specifically to stop or delay the eviction. If so, that was a poor strategic choice, and not just because of the nuances of the distinctions between foreclosures and evictions. The first sentence of the Eleventh Circuit’s opinion tells us that Sarah is “a debtor proceeding pro se.” The “Disussion” section says they can only “discern from [Sarah’s] scattershot appeal, two issues sufficiently developed for appellate review.” The footnote to that sentence explains that several other issues were waived because they were either “not raised below or raised in a cursory fashion without citation to authority.” In other words, there may have been other arguments that would have worked but she didn’t raise them effectively. All of which is why you hire a lawyer: to help you know which arguments to make and how best to make them.

Lying police undermine confession

This week’s case comes out of the Tenth Circuit: United States v. Young, No. 18-6221, on appeal from the Western District of Oklahoma. It is marked for publication, but I don’t have the cite yet.

Shane Young was driving early one morning in Woodward County, Oklahoma. The police signaled him to pull over, but he delayed stopping for a while. When he finally stopped, he got out of the car and fled on foot. The police caught him and retraced his steps. They found a small headphones case containing 4 grams of meth. They arrested him, but he invoked his rights to counsel and to remain silent and was released before too long.

Later that day, police returned to Mr. Young’s flight path and found something they had missed before: a black bag containing 93 grams of meth. The black bag changes things. Possession of 4 grams has no mandatory minimum prison term, but possession of 97 grams (the headphones case plus the black bag) carries a mandatory minimum of 5 years in prison. 21 U.S.C. § 841(b)(1)(B), (C). They rearrest him. He admits to the 4 grams but not the 93 grams. He asks for a lawyer, so they stop questioning him (but they do not let him go).

Four days later, Mr. Young is still in custody when he meets FBI special agent Kent Brown. Mr. Young tells Agent Brown about how he’s worried about the effect this arrest will have on his life. He has a new baby, etc. Agent Brown says he wants to help and that he’s “on your side.” Agent Brown showed Mr. Young the federal arrest warrant, but told him that he had spoken to the federal judge on the case. According to Agent Brown, the judge was willing to charge Mr. Young “anywhere from five to ten years” for the 4 grams. But Mr. Young could “physically buy down the amount of time you see in federal prison” by “own[ing] to the information.” According to Agent Brown: “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re actually going to see.” In other words, the more meth Mr. Young admitted to possessing, the less prison time he would get. Agent Brown specifically said: “that’s the way it works.”

Mr. Young was a little suspicious, but he didn’t have any experience in federal court. He wondered if he should talk to a lawyer and said he felt “like I’m buying the farm.” But he bought the farm anyway. He agreed with Agent Brown’s suggestion about how the black bag with 93 grams got there and was charged with possession with intent to distribute 97 grams of meth. By owning to the information, Mr. Young increased the amount of time he was likely to see from 0-20 years to 5-40 years.

A lawyer was appointed for Mr. Young after he was charged. The lawyer moved to suppress the confession as involuntary. Involuntary confessions are not admissible. The Government bears the burden of proving that the confession was not involuntary, that it was “freely self-determined.” In considering the question, courts should consider the totality of the circumstances, including characteristics of the accused and the details of the interrogation and whether there was any “coercive police activity,” such as misrepresentations and promises of leniency.[1]

The district court found that Agent Brown lied to Mr. Young and made promises of leniency. Nevertheless, the district court determined that the confession was voluntary, based mostly on the relative friendliness of the interrogation, Mr. Young’s experience in state criminal court, and the fact that he had been advised of his constitutional rights. Unable to avoid the confession, Mr. Young pled guilty and was sentenced to 188 months’ imprisonment. That’s 15 years and 8 months. So by confessing to more meth, he “physically bought down his time” and increased it from the 5 to 10 years Agent Brown had promised to more than 15 years.

On appeal, the Tenth Circuit was most troubled by Agent Brown’s misrepresentations about how the federal system works. “Although we do not require a law enforcement officer to inform a suspect of the penalties for all the charges he may face, if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” This is a version of a general rule in American law: you don’t have to say anything, but if you do say something, you can’t lie. Here, Agent Brown lied to Mr. Young when he said that confessing to higher quantities would result in a lower sentence. Agent Brown also lied when he said that he would tell the judge about Mr. Young’s cooperation, that the cooperation would “physically buy down the amount of time you see in federal prison,” and that “that’s the way it works.”

Because “that is not the way the federal system works.” Slip Op. at 9. In the federal system, higher amounts of possession tend to result in longer sentences. Cooperation can reduce sentencing ranges, but not enough to overcome the difference between 4 grams and 97 grams. Agent Brown’s lies undermined the voluntariness, and therefore the admissibility, of the confession. The confession should have been suppressed. The conviction must be vacated and the case remanded for further proceedings.

This case gives me hope. Police authority should come from their moral authority, their impeccable integrity, not from their guns. I am glad to see courts holding police to that standard.


Footnotes:

  1. I have omitted the case citations. If you are interested in seeing the cases the court cited, check out the slip opinion at 6–8.

Gambling with your Credit

When I was a kid, we would occasionally have disputes about how to spell things. Settling the matter took about four stages: first, we would both insist that we were right; second, we would escalate our insistence, through raised fists, threatening eyebrows, and oaths taken on our mothers’ lives; third, one of us would dare the other to check the dictionary; fourth, the loser would declare the winner a nerd.

The French, at the end of their kingdom and the beginning of their empire, had a similar idea, only it would spread to all disputes ever. They had this idea that The Law should be simple enough to fit into a single book that everybody could have on their bookshelf. The idea was that two Frenchmen could have any dispute at all and resolve it by going through the four phases I mentioned: (1) I’m right / no, I’m right; (2) I swear I’m right / yeah, well I would bet my last bottle of wine that I’m right; (3) oh yeah? Why don’t you check The Code?; (4) you’re such a nerd.

Only: the law deals with life, and life is more complicated than spelling. In the first place, Napoleon’s “book” has spread to over 3,000 pages. In the second place, the hardest part of practicing law is almost never finding a piece of law to support your position. Rather, it’s deciding which arguments of several would be best and most likely to help you win.

Take this week’s case, In re Nicolaus, out of the 8th Circuit. Anthony Nicolaus ran a business with his brother. They ran into trouble with the IRS, apparently failing to pay withholding taxes. The IRS began collection efforts, so Nicolaus filed bankruptcy under Chapter 7.

Let’s pause for just a second. Chapter 7 is frequently touted as an “easy” way to get rid of debt without paying it. But there are some debts that don’t get discharged in Chapter 7. For example, child support is never discharged, nor is any debt for death or personal injury resulting from a D.W.I. 11 U.S.C. § 523(a)(5), (9). Student loans are almost never discharged. 11 U.S.C. § 523(a)(8). And debts for taxes are very difficult to discharge. 11 U.S.C. § 523(a)(1)(A) (referring to 11 U.S.C. § 507(a)(8) (referring to any tax “to be collected or withheld and for which the debtor is liable in whatever capacity,” including withholding taxes)). So if Mr. Nicolaus wanted to get out of his debt for not paying withholding taxes, Chapter 7 may not have been the way to go.

Back to the case. He files for bankruptcy. The IRS files a proof of claim. He files an objection. The IRS never responds. The bankruptcy court sustains the objection and disallows the claim. He does not have to pay the IRS.

A year later, the IRS files a motion to vacate the order disallowing the claim. According to the IRS, Mr. Nicolaus had to serve the objection not just on the IRS, but also on the attorney general and the local U.S. attorney. Since he had only served the IRS, the order disallowing the claim was invalid for lack of personal jurisdiction. The bankruptcy court agreed, as did the district court on appeal. The Eighth Circuit, however, disagreed. At the time Mr. Nicolaus filed his objection, the rules only required service on the IRS. The requirement of service on the attorney general and the local U.S. attorney were added later. Therefore, the IRS was properly served, and the bankruptcy court had jurisdiction to sustain the objection and disallow the claim. Mr. Nicolaus does not have to pay the IRS.

But that’s largely because the IRS wasn’t paying attention. If Mr. Nicolaus filed for bankruptcy in order to get out of his debt to the IRS, he was taking a major gamble. If the IRS had been paying attention, he could have ruined his credit for nothing.

Stopping Time and the Meaning of “A”

This week’s case comes out of the Tenth Circuit: Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). Judge Bacharach wrote for Judges Holmes and Matheson.

Jose Angel Banuelos Galviz entered the United States in 2006. Around 2009, he received a document from the immigration authorities labeled “notice to appear,” but it did not tell him a time or place to appear. Around 2016, he received a second document, telling him when and where to appear. He showed up. The IJ (or “immigration judge”) ordered Mr. Banuelos removed and denied his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Mr. Banuelos appealed to the BIA (the Board of Immigration Appeals).

While his appeal was pending, the Supreme Court issued its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). Pereira dealt with a form of relief called “cancellation of removal,” available under 8 U.S.C. § 1229b(1). That provision gives the attorney general, acting through the IJ, permission to let a removable person nevertheless remain in the United States, and potentially adjust to lawful permanent resident status, if he can satisfy four requirements:

  1. 10 years of continuous physical presence in the United States, and
  2. good moral character, and
  3. no convictions for certain specific criminal offenses, and
  4. that his removal “would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,” so long as the affected spouse, parent, or child is either a U.S. citizen or a lawful permanent resident.

8 U.S.C. § 1229b(b)(1).

The first requirement—ten years of continuous presence—is measured from the time the person enters the United States until the person is served with “a notice to appear under section 1229(a).”[n.1] 8 U.S.C. § 1229b(d)(1). This is referred to as the “stop time rule.” At the time of Mr. Banuelos’s removal hearing, the BIA had held that a so-called notice to appear could stop time even if it did not actually tell you when or where to appear. So even though he received notice of his removal hearing more than 10 years after he entered the United States, the BIA did not consider him eligible for cancellation of removal because he had received a so-called notice to appear just 3 years after entering.

The Supreme Court changed that rule in Pereira, holding that a so-called notice to appear without a time and place does not stop time. In other words, continuous physical presence must be measured from the time you enter the United States until the time you receive a notice to appear telling you when and where to actually appear. Applied to this case: Mr. Banuelos potentially qualifies for cancellation of removal because there were more than 10 years between when he entered and when he received notice of when to appear. Mr. Banuelos asked the BIA to remand back to the IJ to consider his application for cancellation of removal. The BIA denied that request, and he petitioned the Tenth Circuit for review.

The Tenth Circuit granted review and remanded to the IJ to consider Mr. Banuelos’s application for cancellation of removal. The court determined that, in order to stop time, the notice to appear must be a single document containing all the information required in § 1229(a). Both the plain language of the statute and its legislative history mandate this result.

The plain language of the statute reads: “For the purposes of this section, any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a) defines a “notice to appear” as a written notice specifying certain things, including “The time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G). Therefore, a written notice that does not include the time and place is not a “notice to appear under section 1229(a)” and does not stop time.

But what if you get two documents, one containing some of the information, and another one containing the rest? Some jurists think that the two documents can combine into “a notice to appear under section 1229(a)” and therefore stop time. The Tenth Circuit disagreed, based on the relevant legislative history.

Prior to the enactment of the current section 1229(a), removal proceedings were initiated with two documents: an order to show cause and a notice of hearing. Then, Congress changed the process in 1996:

To simplify removal proceedings, Congress adopted § 1229(a), replacing the two documents with a single notice to appear, which had to include all of the information previously sprinkled throughout the order to show cause and the notice of hearing. Given this congressional intent to replace two documents with one, we should be wary of reading the singular “a” in § 1229 to refer to multiple documents.

Banuelos v. Barr, 953 F.3d 1176, 1182 (10th Cir. 2020) (citing Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996)).

If two documents were required before, then only a single document is required now. Only if that single document satisfies all the requirements of section 1229(a) (including the requirement of a specific time and place to appear) will it stop time for purposes of cancellation of removal. Because Mr. Banuelos did not receive that single document until more than 10 years after he had entered the United States, the Tenth Circuit remanded to the IJ to consider his application for cancellation of removal.

It should be noted that not everybody agrees with the Tenth Circuit. The court itself noted that, while the Third and Ninth Circuits agree with the Tenth, the Fifth and Sixth Circuits do not. See Guadalupe v. Attorney General, 951 F.3d 161 (3d Cir. 2020) (subsequent notice of hearing does not retroactively cure a defective notice to appear); Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (same); but see Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020) (time stops when the person “receives all required information, whether in one document or more”); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (same). Given the present administration’s aggressive stance on removal, there are a lot of cases percolating through the federal courts. The Supreme Court may have to resolve the split before too long. In the meantime, if you live in Texas, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, or Michigan, this case may not be helpful to you


  1. Intrepid readers will note that section 1229b(b)(1)(A) does not say that time stops when you are served with a notice to appear. That section says that time stops on “the date of [the] application” for cancellation of removal. But you wouldn’t apply for cancellation of removal until after you had been ordered removed. And you cannot be ordered removed without being served with a notice to appear. 8 U.S.C. § 1229(a). But being served with a notice to appear stops time for continuous physical presence. 8 U.S.C. § 1229b(d)(1). So which one is it—does time stop when you’re served with a notice to appear or when you apply for cancellation? This kind of internal conflict plagues the immigration system. It makes lawyers scared to enter the field, and it virtually guarantees that people representing themselves will trip on something.

Scheming to Hide the Kids

Sometimes in law, there are no winners. The 2018 case of Bos v. Smith, 556 S.W.3d 293 (Tex. 2018), is one of those cases. It contains a long and sordid tale, but the bottom line is that a father sued his former in-laws under Chapter 42 of the Family Code for aiding or assisting his ex-wife in blocking his visitation rights. The trial court awarded him $3 million “for mental anguish caused by [his in-laws’] interference with possessory rights” and $236,000 “for economic damages related to [his] legal defense.” Bos v. Smith, 492 S.W.3d 361, 374-75 (Tex. App.—Corpus Christi 2016), rev’d by Bos v. Smith, 556 S.W.3d 293 (Tex. 2018). The court of appeals affirmed the mental anguish damages but reversed on the economic damages. The Supreme Court reversed the whole thing and rendered judgment in the in-laws’ favor. To try to keep them straight, I’ll refer to the Court of Appeals’ opinion as “COA” and the Supreme Court’s opinion as “SCOTEX.”

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.

SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.

SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.

The Government’s Right to Flood You Out

I was always taught to put your best argument first. Otherwise, the people you’re trying to convince might get caught up on something else and never get to it. In judicial opinions, the court is trying to convince the litigants and the public at large that the court made the right decision. They are so busy, however, that you sometimes come across opinions that are organized more like prose transcriptions of the judges’ notes than a piece of argument. The Fifth Circuit’s opinion in Residents Against Flooding v. Reinvestment Zone No. 17, No. 17-20373 (May 22, 2018) (per curiam) is just such an opinion. To be fair, the opinion isn’t signed, so we shouldn’t necessarily expect anything interesting out of it. Still, this post isn’t meant to criticize, but to consider how the argument could have been structured. 

The case arose when some residents in Houston sued their local government for designing and implementing a stormwater drainage system so that excess stormwater was diverted away from commercial areas and into their neighborhoods, causing floods and interfering with their rights and abilities to use their homes. The district court dismissed the claims, and the Fifth Circuit affirmed.

One of the residents’ theories was that the City’s plans violated their substantive due process rights under the 14th Amendment. To win on that claim, the residents would have to show (1) that there was governmental conduct (2) that interfered with a constitutionally protected right and (3) that was not rationally related to a legitimate government interest. The first element was not in dispute. Clearly, designing and implementing a stormwater drainage system is government conduct. But does it implicate a constitutionally protected right?

The residents said they had a constitutionally protected “right to use their homes.” Slip Op. at 4. I have to admit: I find that rhetorically appealing. Of course you have a constitutional right to use your home. What else does the Third Amendment stand for if not that? But the Fifth Circuit was not persuaded. That phrasing “is too broad and unsupported by caselaw.” Slip Op. at 4-5. But the Fifth Circuit didn’t cite any caselaw saying you don’t have a right not to be flooded out by government conduct. Instead, it just labels the caselaw cited by the residents as “inapplicable.” Slip Op. at 5. I dunno. I’m not convinced.

But “Even assuming that the government projects implicated a constitutionally protected right” — which feels like an unrebutted assumption — “these projects were at least debatably rationally related to a legitimate governmental interest” because “the government objectives were to improve its tax base and the general welfare.” Slip Op. at 5-6. Sure, that’s legitimate. But improving the tax base by flooding one property instead of another? The court might as well have cited Kelo v. City of New London, 545 U.S. 469 (2005).  Do you remember that case? In it, the U.S. Supreme Court said that local governments had the right to force private owners to sell their property as part of a “comprehensive redevelopment plan,” even when that plan involves the local government turning around and selling the property to another private owner. It’s one of the most controversial decisions of this century. If this case had come out of the Ninth Circuit, we’d be hearing calls to revive the House Un-American Activities Committee.

OK. So you think people have a constitutional right to use their homes and that local government shouldn’t interfere with that? Too bad. “This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th Cir. Unit B 1981). In York, “the plaintiffs . . . alleged that the government’s actions with regard to infrastructure and drainage resulted in ‘water and sewage . . . deposited on [the] appellants’ property’ during times of ‘excessive rainfall’, depriving them of their property rights.  We held that the appellants failed to allege facts that rose to the level of a violation of the U.S. Constitution.”  Slip Op. at 6-7.

Wait, what?  There’s a case directly on point?  Why didn’t you lead with that?  I may or may not agree with you that a local government plan that floods my neighborhood doesn’t “involve” my property, and I may or may not agree with you that flooding one local property instead of another is rationally related to increasing the tax base or that increasing the tax base by itself is a legitimate government objective, but we can all agree that stare decisis is extremely important.  It’s what sets the Anglo-American common law system apart from the French and German civil law system used in most of Europe and Latin America.  In America (and the other common law legal systems), we don’t decide cases by resorting to a dictionary.  We decide them by looking to our collective experience in resolving disputes. 

On-point caselaw wins every time. It would have been totally acceptable for the City to argue that the Fifth Circuit had already decided this exact question back in 1981.  It would have been totally acceptable for the Fifth Circuit to cite York with little more explanation than, “the Residents want us to do x, but that is foreclosed by precedent.”  They do it all the time in criminal cases.  It’s interesting that they didn’t do it here.


I know what you’re thinking. The City won, the Supreme Court didn’t grant cert. Who cares? Well, I started to read the case because I was in Houston during Hurricane Harvey, and I remember the “controlled releases.” Thankfully, I was living in an old part of town that wasn’t built in a flood plain. But I know people whose homes were “implicated” in the “controlled releases.” So I was interested to see how the Fifth Circuit dealt with these issues. My initial sense is that the government ought to be liable for that somehow. After all, government action created the risk of flooding and government action literally caused the flooding. Why shouldn’t they be responsible?

And I gotta tell you: baldly stating that “their [the residents’] claimed right to use their homes is too broad and unsupported by caselaw” just doesn’t convince me.

Hold, Please

This week’s regularly scheduled post has been delayed. I’m working on something I’m really proud to be working on (though I prefer not to speak about it yet). For the moment, it’s hard for me to think about much else. Posting will resume next week with, I think, a post about an immigration case.

Papering Over the Constitution

The case of United States v. Lim, 897 F.3d 673 (5th Cir. 2018), is one of those cases that discourages me. It involves dishonesty and duplicity by three different Government actors on three different levels.

Level 1: The Miranda Two-Step

Miranda v. Arizona, 384 U.S. 436 (1966), is the source of the well-known “Miranda Warning”: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. And so on. The purpose of the Miranda Warning is to inform people that they do not have to answer police questions without an attorney present. But what if people won’t answer questions if there is an attorney present? How can you make sure you catch the bad guys?

One solution is the “Miranda two-step.” It goes like this:

  1. The officer asks questions and gets answers he likes.
  2. The officer gives the Miranda Warning to the individual, telling him that he doesn’t have to answer any questions.
  3. The officer asks the same questions again.
  4. If he gets the same answers, great; if the answers change, the officer says something like: “Wait a minute. Didn’t you just say . . . ?” With any luck, the person will change their answer back to the original answer.

It can be a pretty effective technique for covering up Miranda violations. It’s also pretty slimy.

In this case, ICE was executing a warrant for removal on a guy named Chhay Lim. Mr. Lim had been ordered removed 16 years earlier, but apparently had not been a priority for tracking down. Anyway, ICE knocked on his door at 6 am, asked him to step outside, and arrested him on his front porch. Lim, 897 F.3d at 685. Even though he was clearly under arrest, the ICE officers did not give him the Miranda Warning. In fact, the ICE officer in question “bragged that it was his standard policy not to Mirandize an alien until after it appeared that criminal charges might be filed.” Id. at 690. In other words: this officer doesn’t like to tell people they don’t have to answer incriminating questions until they have already answered some incriminating questions.

Back to the two-step. Since it was 6 am and Lim was still in his underwear, they “offered to allow Lim to return inside to dress,” but “they would have to accompany him inside if he did.” Lim, 897 F.3d at 685. Once inside, they asked him if there were any guns in the house. He told them there was one in the bedroom and one in the laundry room. They escorted him to the bedroom, and he pointed out where the gun was. Step one complete.

Step two: They “secured the gun” and “read [him] his Miranda rights.” Id. at 685. This is a key juncture in the facts of the case. Everything before the warning is “pre-Miranda”; everything after is “post-Miranda.”

Step three: Post-Miranda, they ask him where he got the gun. He said: “From a friend,” but then exercised his right to remain silent. Id. at 685.

At trial, the Government wanted to admit into evidence: (1) Lim’s statements admitting that there were two guns in the house and (2) the guns themselves. Lim objected: the question about whether there were any guns was pre-Miranda, and the guns were only discovered because of the Miranda violation. The trial court overruled his objections. On appeal, the Fifth Circuit agreed with Lim that the pre-Miranda statements and the laundry room gun should have been excluded, but agreed with the trial court that the bedroom gun could be admitted, because it would have been discovered in a proper protective sweep of the bedroom.

Even though the Fifth Circuit got this part of the case right, it’s discouraging that the ICE officers routinely dance the Miranda Two-Step.

Level 2: Crafty Wording in the Factual Basis

After the trial court denied his motion to suppress the statements and the guns, Mr. Lim pled guilty. As part of the guilty plea process, the Government drafted and Mr. Lim executed a “factual basis.” The idea of the factual basis is to make the judge comfortable that this defendant actually did what the Government claims he did.

Here, the Government drafted the factual basis to say the laundry room gun was “in plain view.” Lim, 897 F.3d at 688. If the gun was in plain view, then it was ok for the ICE officers to ask about it without telling Mr. Lim that he didn’t have to answer any questions. But here’s the thing: the officer who found the gun didn’t think it was in plain view. In fact, he testified that it took two tries to find the gun in the laundry room because it was “in a place he did not look initially because it was not somewhere a person could hide.” Lim, 897 F.3d at 688.

The Fifth Circuit did not approve of the Government’s shenanigans: “we will not allow the government to avoid its own evidence and rely on a craftily worded factual basis to justify a potentially unconstitutional search.” Lim, 897 F.3d at 689.

Still, it’s disappointing that a member of the bar who has taken an oath to uphold the Constitution and laws of the United States would stoop to shenanigans like this.

Level 3: The Appeal Waiver

Generally speaking, a defendant who pleads guilty waives the right to appeal any nonjurisdictional defect in the proceedings that occur before the plea is entered. A defendant may plead guilty while still reserving the right to appeal some aspect of the proceedings; that is referred to as a “conditional guilty plea.” Conditional guilty pleas, though, must “be in writing and designate the particular issues that are preserved for appeal; the government must consent to it; and the district court must approve it.” United States v. Olson, 849 F.3d 230, 231 (5th Cir. 2017). But “variances from these technical requirements” can be excused if “the record clearly indicates” that the defendant intended to enter a conditional plea, that he intended to appeal a particular pretrial ruling, and that neither the Government nor the district court objected to the conditional guilty plea. Lim, 897 F.3d at 680-81.

Here, the “written plea agreement does not indicate that the plea was conditional.” Lim, 897 at 680. In other words, Mr. Lim’s conditional guilty plea was not in writing, as required by Olson. So on appeal, the Government’s first argument was that Lim waived his right to appeal.

Only — that’s not the position the Government took in the trial court. According to the trial court “it is my understanding that you [Mr. Lim] and the government have agreed that you will not waive any right to appeal your conviction or your sentence.” The trial court then confirmed with Mr. Lim, Mr. Lim’s counsel, and the Government’s counsel that the court’s understanding was correct. In fact, the prosecutor agreed on the record:

Yes, Your Honor, that is correct. We have stripped out all of the appeal waiver language so he is reserving all of his appellate rights.

Lim, 897 F.3d at 680.

The Fifth Circuit was not amused. After outlining the facts and noting that, “The government weakly contends, however, that Lim did not do enough to preserve his right to appeal the denial of his motion to suppress,” the Fifth Circuit simply concluded: “Lim properly preserved his right to appeal the denial of his motion to suppress.” Lim, 897 F.3d at 681.

Still, it’s disappointing that the Government’s appellate attorney would even make the argument.

Thoughts for the Road

The police and the Government are supposed to be on the side of law and order. In America, that means being on the side of those who keep their promises. But here we have an ICE officer playing games with the constitutionally promised right to remain silent, we have a government trial lawyer trying to paper it over, and we have a government appellate lawyer trying to hide it. We have a right to expect better from our Government.

Pith and Wit and Truth

Ancient Greek and Roman lawyers recognized that pith and wit could overcome logical rigor in the courtrooms of their day. For example, Socrates was convicted and executed, not because his prosecutors proved that he did what they alleged with irrefutable logic, but because their rhetoric convinced the jury to make one decision instead of another.1 Rather than run from rhetoric in search of truth, ancient lawyers used rhetoric to aid the truth in coming out. Cicero, for example, wrote a few books on the use of rhetoric in courtrooms. Perhaps they understood that rhetoric often beats logic, even in a fair fight.

One reason rhetoric is so powerful is that logic is so dadgum hard. Denying the antecedent has been recognized as a logical fallacy for perhaps 2,300 years. Aristotle gave an example of its twin sister, affirming the consequent, way back in his Sophistical Refutations in the late 4th century B.C.E. I am not aware of a “classic” example of denying the antecedent, but they are easy and fun to come up with. For example:

  1. If it is a basketball, it is round.
  2. A baseball is not a basketball.
  3. Therefore, a baseball is not round.

On the other hand, a piano is not a basketball, and a piano is, in fact, not round. Sticking the piano into the syllogism in the place of the baseball makes it look like the syllogism works:

  1. If it is a basketball, it is round.
  2. A piano is not a basketball.
  3. Therefore, a piano is not round.

And that’s the trouble with logical fallacies: they tell you nothing about the conclusion. They make it neither more likely nor less likely that the conclusion is true.

Still, this particular fallacy has some staying power. Perhaps that is because its other two sisters—affirming the antecedent and denying the consequent—are logically valid. If the thing in my hands is a basketball, it must be round. Because the piano in my room is not round, it cannot be a basketball.

Denying the antecedent is a common mistake. People make it all the time. Even federal judges in published opinions affecting the lives and livelihoods of hundreds of people. In fact, I found an example in a recent Fifth Circuit opinion, DISH Network Corp. v. NLRB. The facts are remarkably complicated, but the bedrock syllogism on which the decision is built goes something like this:

  1. If the attrition rate at the union shops was 116 percent, then the offer to phase out QPC was substantial evidence that the parties were not at an impasse.
  2. The attrition rate at the union shops was not 116 percent.2
  3. Therefore, the offer to phase out QPC was not substantial evidence that the parties were not at an impasse.

(Slip Op. at 8–9.) Or, to put it in the same terms as the first syllogism:

  1. Definitions
    1. Let the “basketball” signify that the attrition rate at union shops is 116 percent.
    2. Let the “baseball” signify that the attrition rate at union shops is not 116 percent.
    3. Let “being round” signify that there is substantial evidence that the parties were not at an impasse.
  2. If it is a basketball, it is round.
  3. A baseball is not a basketball.
  4. Therefore, a baseball is not round.

It may or may not be actually true that the parties were at an impasse. Perhaps what I have called a baseball is in fact a piano. That’s the problem with invalid syllogisms—they look smart but they tell you nothing.

Rhetoric, on the other hand, particularly pith and wit, can be very satisfying to read. And the court gets high marks on for that. The opinion is full of quotable soundbite phrases like:

  • “The Board’s no-impasse finding flunks these standards.” (Slip Op. at 7.)
  • “The ALJ erred, and the Board doubled down. Two wrongs can’t make the Board right.” (Slip Op. at 9.)
  • “We recognize that the NLRB, in particular, struggles with this rule.” (Slip Op. at 14.)

Pith and wit are more exciting to read and, on some level, convincing. But they should not be confused for logical rigor.


Footnotes:

n.1: Despite his (disingenuous?) thrashing of rhetoric as an empty art in Plato’s Gorgias, Socrates really could have used it at his trial. His trademark socratic method may be a great educational tool, but it’s pretty terrible at convincing anybody to do anything.

n.2: The opinion never states what the attrition rate at the union shops actually was, and this is a second problem. Although the court refers to the attrition rate at union shops as the “relevant data” and assures us (the people it’s trying to convince) that the “relevant data . . . supported DISH,” the court never discloses the relevant data. One footnote concedes that the “correct attrition rates,” whatever they may have been, were “described . . . as ‘high’.” (Slip Op. at 9 n.3.) Another paragraph refers to “an attrition rate of 30.5%,” but the court dismissed that as “simply not what the Board or the ALJ said.” (Slip Op. at 14–15.) So it’s not clear what the actual attrition rate was.

Perhaps the court avoided showing the “correct attrition rates” because it wanted to avoid the paradox of Zeno’s grain of millet. The court seems to agree that an attrition rate of 116 percent would be high enough. Its refusal to confront the 30.5-percent rate suggests that 30.5 percent may be high enough, but it’s not conclusive. What about the 86 percent that a prior court in the same case found at one of the union shops? Kinard v. DISH Network, 228 F. Supp. 3d 771, 782 (N.D. Tex. 2017). The truth is: we don’t know what attrition rate would have been high enough for the court to perceive the union’s offer to phase out QPC as substantial evidence that the parties were not at an impasse and further negotiations might be fruitful.

Exile and the Right to Counsel

Hernandez v. Barr (1st Cir. June 15, 2020) (Lipez, J., writing for Barron and Stahl)

Lawyers are important to the administration of justice. The Founding Fathers included the right to counsel in criminal trials in their Bill of Rights in 1791 (almost half a century before Englishmen enjoyed the right): “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In 1938, the Supreme Court held that if the accused in a federal case cannot afford counsel, he has the right to appointed counsel paid for by the government. Johnson v. Zerbst, 304 U.S. 458, 463 (1938). And in 1963, the right to appointed counsel was extended to state court cases. Gideon v. Wainwright, 372 U.S. 335 (1963).

But it doesn’t apply to removal cases in immigration court. This is because they are “deemed to be civil, not criminal, proceedings.” Paul v. INS, 521 F.2d 194, 197 (5th Cir. 1975). There is, however, a statutory right to retained (not appointed) counsel in removal proceedings:

In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

8 U.S.C. § 1362.

It is the law of the land that exile is sufficiently less bad than imprisonment that poor people facing it can be forced to defend themselves, often with disastrous consequences. But what happens when a detained respondent in a removal proceeding tries to retain counsel but, because of her detention, misses it by one day? The First Circuit, in Hernandez v. Barr, says the immigration court has to give her that extra day.

The IJ says Ms. Hernandez didn’t try hard enough to get counsel.

Ana Ruth Hernandez Lara entered the United States in the fall of 2013 without being admitted or paroled. She found her way to Portland, Maine, where she was arrested by immigration officers five years later. They transported her 60 miles south to Dover, New Hampshire, for detention. The removal proceedings were probably held in Boston, another 60 miles south of Dover. (The reader may be interested to note that El Salvador, the country she left, is only 191 miles long.)

Here is what happened after she was arrested:

  • September 20—Ms. Hernandez was arrested.
  • October 11—Ms. Hernandez appeared without counsel at her master calendar hearing. The immigration judge (“IJ”) advised her of her right to retained counsel and asked whether she wanted an opportunity to find one. She responded “that she had an attorney who was not aware of the hearing.” (Slip op. at 5.) Ms. Hernandez does not speak English and required the assistance of an interpreter at this and all subsequent hearings.
  • October 18—Ms. Hernandez appeared for her second hearing, the custody and bond proceedings. She appeared at this hearing with an attorney (“Laura the Bond Attorney”), but Laura requested a week “to decide whether she would continue to represent [Ms.] Hernandez.” (Slip Op. at 4–5.)
  • October 25—Ms. Hernandez appeared for her third hearing, this time without counsel. The IJ asked whether she had an attorney, and she said, “Yes, I have one.” Ms. Hernandez believed that Laura the Bond Attorney, would continue representing her. She was wrong. The IJ “confirm[ed] that [Laura’s] entry of appearance was limited to the bond hearing and that no other attorney had entered an appearance for the removal proceedings” and “informed [Ms.] Hernandez that she would have to ‘speak for herself and represent herself’ that day.” (Slip Op. at 7 (original revisions omitted).)
    The IJ then read her the allegations, asked her questions, and “found [her] removable as charged.” (Slip Op. at 7.) The IJ asked her some more questions and handed her a Form I-589, the application for relief from removal. He recessed the hearing for another eight days so she could “fill out the application completely in English.” (Slip Op. at 7.)
  • October 29—Laura the Bond Attorney told Ms. Hernandez that she can no longer represent Ms. Hernandez. Ms. Hernandez started looking for new counsel.
  • November 2—Ms. Hernandez appeared for her fourth hearing, again without counsel. The IJ asked whether she had counsel, and she explained that she had been trying to find new counsel since she found out that Laura the Bond Attorney would no longer represent her. “They say they cannot take my case from one day to another, so they asked me to ask the judge if they could give me another day for them to review my file to see if they can take my case.” (Slip Op. at 8.) The IJ informed her she would have to proceed without counsel and speak for herself.
    The IJ asked whether she had filled out Form I-589. Ms. Hernandez: “Well, the problem is that I can’t write in English and I can’t read it, so I couldn’t fill it out.” (Slip Op. at 9.) The IJ recessed for six more days so she could fill it out.
  • November 6—Laura the Bond Attorney asked for permission to turn Ms. Hernandez’s file over to a new attorney.
  • November 8—Ms. Hernandez appeared for her fifth hearing, again without counsel. She told the IJ about Laura asking for permission two days earlier to turn the file over to a new attorney, whom Ms. Hernandez “expected . . . to visit [with] at the Stafford County Jail either that day or the following day.” (Slip Op. at 9–10.) The IJ informed her that she would have to proceed without counsel and speak for herself.
    The IJ asked about Form I-589 again. Someone at the jail had helped her fill out part of it—but it was the wrong part. The IJ recessed the hearing again and gave her one last chance to get it right.
  • November 9—Ms. Hernandez met with her new lawyer, who agreed to take the case.
  • November 16—Ms. Hernandez appears for her sixth hearing, again without counsel. Laura the Bond Attorney still hadn’t turned over the file. Ms. Hernandez “asked the IJ for a continuance to allow her new attorney to be present.” The Government objected to a continuance “for attorney prep,” and the IJ agreed. The IJ told Ms. Hernandez she would have to proceed without counsel and speak for herself. The IJ then conducted the hearing on relief from removal and denied her request.

The Board of Immigration Appeals affirmed the IJ’s decision, and Ms. Hernandez petitioned the First Circuit for relief.

The First Circuit says she tried hard enough.

The First Circuit analyzed Ms. Hernandez’s petition for review for two elements: error and prejudice. For error, the First Circuit analyzed whether the IJ properly denied her last continuance request. There is a special standard for continuance requests based on the need to retain counsel: “absent an express waiver of the right to counsel, the IJ ‘must grant a reasonable and realistic period of time to provide a fair opportunity for a respondent to seek, speak with, and retain counsel’.” (Slip Op. at 18 (citing In re C-B-, 25 I. & N. Dec. 888, 889 (BIA 2012)).)

The Government had argued, and the IJ and BIA found, that Ms. Hernandez had had “five weeks” to find an attorney. But they measured the time period incorrectly. Rather than measuring it from the first hearing, they should have measured it from the moment she “knew that [her] retained counsel would no longer be representing [her].” (Slip Op. at 21 (citing Mendoza-Garcia v. Barr, 918 F.3d 498, 506 (6th Cir. 2019)).) Ms. Hernandez didn’t understand that Laura the Bond Attorney would not be representing her until October 29. It was only 18 days from then until her final hearing on November 16. During those 18 days, she successfully retained counsel, but that counsel failed to appear on November 16 because Laura the Bond Attorney failed to turn over the file in time. “Accordingly, we readily conclude that the IJ, by denying [the last request for more time so that her counsel could be present], failed to ‘meaningfully effectuate’ the statutory right to counsel.” (Slip Op. at 24.) I can’t help but wonder: Would the continuance have been granted if counsel had been present?

So the IJ erred. Who cares? Was it prejudicial? The court’s discussion of prejudice reminded this reader of Gideon’s Trumpet:

  • “That [Ms.] Hernandez raised this argument before the BIA when she was represented, but did not do so before the IJ when proceeding pro se, highlights the difference that the assistance of a lawyer can make.” (Slip Op. at 27.)
  • “Though an attorney would object to that kind of error in an oral decision, [Ms.] Hernandez understandably did not do so.” (Slip Op. at 27.)
  • “Here, the BIA . . . concluded that there was ‘insufficient evidence’ in the record . . . . But the record in this case was undeveloped precisely because [Ms.] Hernandez lacked counsel.” (Slip Op. at 27–28.)
  • “If [Ms.] Hernandez had been represented at her merits hearing, her attorney likely would have drawn that important connection, adduced other . . . evidence to support [Ms.] Hernandez’s testimony and . . . elicited more detailed testimony.” (Slip Op. at 28.)

In other words: of course she lost below—she’s not a lawyer, and she didn’t know how to defend herself. Therefore: prejudice and remand.

Can you fix a record broken by lack of counsel?

One last point bears emphasizing. The regulations expressly prohibit reopening removal proceedings “unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

The Fifth Circuit has repeatedly held that there are no do-overs if you could have done it right the first time. In Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993), for example, the Fifth Circuit refused to reopen removal proceedings where “All of this evidence [in favor of asylum] existed and was available at the time of the original deportation proceeding.” Ogbemudia, 988 F.2d at 600. Or, as the Fifth Circuit noted more recently: to show prejudice, an immigrant must “advance[] grounds for relief that were available at the time of the removal hearing that an attorney might have brought to the IJ’s attention.” Soto v. Holder, No. 12-60238, Slip Op. (5th Cir. Apr. 26, 2013).

In short, it is very difficult to fix a broken record in immigration court.