Jared Culver's Picture


  by  Jared Culver

The Ninth Circuit seemingly has always been on the cutting edge of judicial madness. Always ready to explore jurisprudential reasoning more prudent judges can't escape fast enough, the Ninth ruled that an alien cannot be deported after being convicted of driving drunk TWICE with his children in the vehicle. With Democrats in Congress debating amnesty for millions, including convicted criminals, this ruling is a good example of the reality behind the "glass half-full" messaging surrounding immigration and crime.

In the case, Rafael Diaz-Rodriguez, who had been a legal permanent resident (LPR) since 1990, was arrested and convicted under California law twice for the felony of child endangerment. Diaz-Rodriguez was arrested after driving drunk in both 2003 and 2009 with one of his children in the car. In 2003 he was arrested for driving drunk while he had his 5-year-old son in the car. In 2009, he was convicted of driving drunk with his 6-year-old daughter in the car. In addition he had two other arrests for driving while intoxicated without a child present as well. The California statute Diaz-Rodriguez was convicted of California Penal Code § 273a(a) provides in full:

"Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."

This was a massive problem because under the immigration laws of the United States at 8 U.S.C. § 1227(a)(2)(E)(i), an alien is removable who "at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment."

Now, this appears to be an extremely cut and dry scenario. This is the type of case where one plus one equals two. Alien was convicted of willfully placing his own child in physical danger. Federal law says those aliens are removable. But close watchers of the Ninth Circuit know there is chicanery afoot wherever there are clear statutes that contradict the personal policy goals of its judges.

Both the immigration judge and the immigration appeals board found that 1+1=2 in this case. In fact, even a 2018 Ninth Circuit panel had ruled similarly. However, in the 3 years since the Ninth has had a change of heart. You see, they looked at some dictionaries at the time the Federal law was passed and found that "child abuse" required actual infliction of harm. However, the California statute that Diaz-Rodriguez was convicted of did not require actual infliction of harm. Therefore, to the Ninth Circuit, his conviction did not qualify under the law. And what of child neglect? The judges, again, went to the dictionaries and found that neglect required sustained failure to provide for basic needs. And you know, Diaz-Rodriguez only risked his children's lives twice that we know of. So for the Ninth Circuit, driving drunk with your child twice is not sustained neglect. After all, we cannot afford to risk deporting an alien that only neglects or abuses their children sometimes.

To realize how far off the reservation the Ninth Circuit is going in this case, not only did they reverse their own panel from 3 years ago along with the immigration judge and Board of Immigration Appeals (BIA), they also disagreed with the Second, Third, Fifth, and Eleventh Circuits.

Why persist in judicial gymnastics in such a clear case to protect such a criminal? The Ninth believes they are protecting against "separation" of families. Of course, separation of families is the last resort in the law as it should be. But last resorts exist in this instance because at the end of the day the law is designed to protect the children that cannot protect themselves. Diaz-Rodrigruez's children had no choice in getting in the car with their intoxicated father. But the Ninth did not consider the health and safety of the child. They were only concerned with the slogan of "child separation" at the expense of child protection.

This is not just the latest opportunity to dunk on the Ninth Circuit's bizarre jurisprudence. Unfortunately, the same sort of reasoning is permeating the Congress as they debate passing amnesty in their budget reconciliation bill. Yesterday, House Democrats held a markup for their amnesty provisions where aliens could be eligible even with multiple criminal convictions. Republicans offered amendments to exclude a variety of criminals from the amnesty and all were voted down by the majority Democrats. Their explanations for allowing criminals into the country was not the same as the Ninth's. Instead, Democrats clinged to arguments of Gross Domestic Product (GDP) increases that will accrue with every alien provided amnesty. However, what is missing from both the ludicrous Ninth Circuit opinion and the Democrat amnesty bill is any consideration of the human costs of their policies. Absent from both of their calculations is the cost of crimes to the victims. Needless to say, denial is a dangerous foundation for any public policy, but can be deadly in the context of child protection.

Democrats spent a great deal of time during the Trump Administration discussing the concerns of children. If only they shared that same concern now that they have the power to do something about it. Immigration policy, like all policies, must consider costs, not just benefits. Separating a child from an abusive parent should be a policy goal just as denying amnesty to a child abuser is a win for the country even if the child abuser would increase our GDP. Members of Congress and judges may be insulated from the costs of their decisions, but the American people still pay them all the same. Hopefully, the people are keeping good records of their costs and send the bill directly to those responsible.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Tue, Sep 14th 2021 @ 12:37pm EDT

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