Why I Do Federal Court Immigration Litigation: A Short Elegy
In August 2007, I started as a federal law clerk to United States District Court Judge G. Ross Anderson, a 78-year-old Carter appointee. Judge Anderson presided in the G. Ross Anderson Federal Building and Courthouse in Anderson, South Carolina (which is in Anderson County). Most folks reasonably believed Judge Anderson owned the courthouse, town, and county.
On the bench, Judge Anderson was a bulldog. He did not take no for an answer. He was infamous for ordering the Marshalls to cuff and detain disagreeable lawyers until they could work out discovery disputes. Judge Anderson did not shy away controversial decisions. I was awestruck by his power and authority, and the respect he demanded and deserved.
One day, during sentencing, the probation office recommended a sentence of time served for a 20-year-old woman who had pled guilty to counterfeiting at the Jockey Lot, South Carolina’s largest flea market. The probation office explained that immediately after sentencing they would transfer the woman into ICE custody so ICE could deport her. The ICE officers in the courtroom gave a quick wave.
This caught Judge Anderson off-guard—she spoke English; she had no accent! Judge Anderson gently asked the young woman about her immigration history. She explained her parents brought her to the United States unlawfully when she was an infant, and she had never been to her “home” country. She said she had recently graduated high school, but she could not work lawfully.
Judge Anderson asked the various federal officers in the courtroom what he could do to stop her deportation. He peppered them with questions about immigration law. They nervously explained he could do nothing. And frankly, they were right. The law would not allow him to stop it. Judge Anderson empathized with the young woman and told her she should not be deported, but he could do nothing. He imposed the sentence.
I would spend the rest of my clerkship trying to find ways for the Judge to thwart deportation in the right cases. The idea that immigration law prevented a seemingly all-powerful federal judge from righting an obvious wrong ran counter to everything I understood. It made no sense to me that a federal judge could not check the executive in this purely federal area of law. For better or worse, things that make no sense to me fascinate me.
More than a decade later, I remain fascinated by this paradox: courts are charged with checking the executive but the executive has “plenary power” over immigration. Today, my firm—me and two other former DOJ trial attorneys—seek to use the judiciary to check the executive at every turn. We push for reasonable adjudication timelines for everything from U visas to EB5 visas. We challenge unlawful removal orders through petitions for review. We challenge unlawful rules applied to children and H1B employers alike. And we seek to give immigrant workers a chance at the American dream by challenging unlawful employment based policies. In every case we file, we seek to give tools to federal judges to check the executive and fix immigration wrongs. And we seek to give AILA membership the tools they need to do the same as members of the Administrative Litigation Task Force. Simply said, I try to push my firm to vindicate Judge Anderson.
Judge Anderson passed away last week at the age of 91.
Rest in peace, your Honor. Know I am still trying.