Sunday, September 16, 2007

Re: Dong v. Slattery   [Andy McCarthy]

I'm sorry, but I don't get conservatives who complain about judicial restraint until their own policy preferences are at stake — at which point they want politically unaccountable judges to freelance on policy.

Asylum is a political issue, not a judicial one.  It is generally handled at the discretion of the branch of government charged with the conduct of U.S. foreign policy — the executive branch.

In 1988, Attorney General Meese, to his great credit, issued guidelines directing the Immigration & Naturalization Service to give careful consideration to China's coercive family planning policies in deciding asylum petitions.  In 1989, however, in a case called Chang, the Board of Immigration Appeals — an executive branch administrative body which can be reversed by the Attorney General — ruled that the Meese Guidelines had been directed to INS, not to immigration judges (who are executive branch officials, not Article III judges) and the BIA.  Therefore, BIA reasoned, it was not bound by those guidelines.  BIA then concluded that the "one-child" policy, with its forced abortions and involuntary sterilizations, was not "persecution" — the prerequisite for asylum relief.

There were various efforts to reverse this.  Congress passed a law, but the first President Bush vetoed it, promising to correct BIA by executive action.  But, to make a long story short, there was inadequate procedural follow-through. In early 1993, Attorney General Bill Barr issued a very strong final rule reversing Chang, but the new Clinton administration killed the new rule in the public-commentary period, before it could take effect.  It then took no action to reverse Chang.  That was the state of things when Judge Mukasey made his ruling.

Federal courts are bound to defer to the political branches in this area, even if the judge may personally think the policy is noxious.  Thus, in Dong v. Slattery, Judge Mukasey wrote:  "The policy consistently adhered to by the BIA and applied to aliens seeking asylum based on the 'one child' rule is the policy articulated in Chang.  Under the circumstances presented here, therefore, all that the various pronouncements [by the President and the Attorneys General] ... suggest is that the legislative and executive branches studiously abstained from overruling Chang."

Had he ruled any other way, he would have been usurping executive branch power.  He would also surely have been reversed by the federal appellate court.  In fact, in Zhang v. Slattery (1995), a panel of the Second Circuit (the appellate court that reviews cases from the Southern District of New York, where Mike Mukasey was a judge) ruled that federal courts were bound to defer the the Chang rule.

Our political representatives could have changed the Chang rule at any time if there had been the will to do it.  There wasn't, and it is not the place of federal district judges to conduct foreign affairs or make asylum policy.

09/16 11:33 AMShare