better make that fucking clueless in columbus, or, hear yea, hear yea, lady law professor steps on her own dick.
rifqa bary's legal team has splashed onto the news pages again with an amazing show of ineptitude: i don't know how else to describe it, and it is a case where language falls in behind changing social structures & social convention, but back in the old days when law was a male dominated profession we would have said of a lawyer who had screwed things up as badly as has angela lloyd that "he" had "stepped on his own dick" with his legal maneuvering. so, even though anatomically impossible for ms. lloyd, so far as i am given to kown, it is not past her in the professional argot to say that she has indeed "stepped on her own dick," and that she has seriously impaired the welfare of her client with her legal "acumen."
it is not good the things she has done, trust me.
and, she did it all by ignorance and foolish pride.
i have written a previous post on this, entitled somewhat charitably, as it turns out, "clueless in columbus," rather prophesying that lloyd and her john stemberger "legal team" have placed rifqa bary in peril of being deported to sri lanka. the gist of the matter is simply this: in order for rifqa bary to attain a special juvenile immigration status, she must prove upon application to an immigration court prior to her 18th birthday that reunification with her parents is not possible because of parental abuse, neglect or abandonment. part of the proof process is a certification from the the judge who tried the dependency action that the court's order declaring the child dependent was premised upon a factual and evidentiary showing to the effect that reunification is no possible because of said abuse, neglect or abandonment.
as noted in the previous article, when the bary "legal team" (i put this in parens be ause i would do the same to the phrase "law enforcement" were i describing the keystone cops in action) stipulated to dependency by agreeing that "abuse was not part of the case," and then concommittantly failed to put on any factual recitation or evidence to that effect, they created a court "record" which upon review cannot sustain any such required finding of abuse, or neglect, or abandonment.
they cannot make such a showing to an immigration court because it is not in the record of the state court proceeding.
it is as simple as that.
by eschewing a trial on the merits of the abuse element, and by leaving the record devoid of any findings of abuse, or abuse such as prevents familial reconciliation, they simply have left the case in a posture where no responsible jurist can ever so find. legal findings like this cannot simply be pulled from the air, without sustaining factual records.--
so, franklin county juvenile court judge elizabeth gill cannot simply make such a recitation up if she is asked to prepare an i-360 certification for the federal courts, and she cannot say that reunifaiction is not possible because of abuse, neglect or abandonment because such facts have never been put before her in any sort of contested hearing, and because such facts as a consequence are absent from the record. she cannot make things up from what she "knows" or "feels," such findings and recitations must be based upon competent evidence as considered by the court.
an immigration court reviewing the matter cannot make such a finding up out of whole cloth after reviewing the ohio state court proceedings, no matter how badly they might want to, because such facts are not in the record as testimony, or as any other form of evidence, nor as legal findings of fact or conclusions of law, nor an an order or judgment of law premised upon such matters & showing.
simple as that. and, as a matter of fact (lovely phrase, isn't it), the only finding of fact in the whole record of proceedings on the issue of abuse, is the stipulation of the parties to the dependency to the effect that the finding of dependency was not premised in any fashion upon abuse, as abuse "was not in the case." it will be awfully hard to judge elizabeth gill to say in an i-360 certification that abuse was part of the case, when the parties stipulated that it was not in the hearing in which dependency was found and ordered.
so, as reported over the a.p. wire and published in the april 5, 2010 edition of my local newspaper, the walla walla union bulletin (walla walla, washington), when agenla lloyd recently "... asked [judge gill] to sign an order stating that reunification [of rifqa bary] with her parents is not possible ..." by rifqa bary's 18th birthday, so that she could file an application with the immigration courts without her parent's permission, the judge demurred and declined to sign such an order.
guess how far angela lloyd would have gotten requesting the i-360 certification at the same hearing? go ahead, take a stab at it.
if the rifqa bary keystone cops, ... , excuse me, "legal team" had clue one in this whole thing, they would realize that judges cannot sign orders which are not based upon legal findings premised upon properly found facts and circumstances. in other words, if the issue of reunification or reconciliation of the parties being blocked by abuse or neglect or abandonment were never tried, and considered and decided, a judge cannot simply pretend that it was and then issue a ruling on it.
this is what happens when law professors practice in little sinecures in which real trial work is not very often done, and they either forget or do not know that factual records must be made to support requested relief from a court: a court is powrless to extend such relief, in the absence of sufficient proof on the record before it that the relief ought as a matter of law to be forthcoming.
as i have said, angela lloyd stepped on her dick by failing to establish a factual record which might have enabled a judge to give her the order she request, and might have justified the judge in issuing the needed i-360 certificate needed by the immigration courts.
does this mean rifqa bary goes to sri lanka when she is 18, deported as an adult illegal alien? well, it doesn't mandate that she will, the immigration service not having been able to find about 5 million mexican illegals in california for years and years, but, the possibility is not precluded, either, is it?
immigration authorities don't catch up with people sometime for a long time. and, she can always apply for asylum. those possibilites lie open to her. as does the possibility of deportation. such an unsatisfying turn of events might have been prevented.
how?
well, although not without risk, th e surest way to have gotten the required findings established on the record, and found by the court, would have been to have tried the abuse case on the merits and on the record, and further relevant proofs both in terms of the state domesitc law dependency case and the federal immigration process could have been presented and made by trying the issue of the risk presented to rifqa bary's very life by apostasy under muslim law and culture.
but, that opportunity is past, and the matter is done. such a presentation is foreclosed.
or, is it?
the walla walla, washington union bulletin's account of what happened in the hearing is a bit brief, but franklin county judge elizabeth gill though declining angela lloyd's application for such an order as sought for use in the federal immigration courts has apparently left the matter open. the situation is described as follows:
"... judge gill declined to issue the order without a hearing next month."
i do not know the procedural posture of that hearing. i do not know, for instance, whether angela lloyd and hte vaunted "legal team" will be allowed to present new & fresh evidence, testimony and proof on the direct issue of reunification being impossible as stemming from "abuse, neglect or abandonment" by the parents as directed towards rifqa bary.
if not, or if this issue has not been, or was not, reserved for further hearing at the dependency hearing, then rifqa bary's prospects are not good. at some point in a hearing of such limited scope, judge gill is going to look down at angela lloyd over her perce nez, and say, counsel, what facts or findings or rulings of the court substantiate or are sufficient in a legal sense to authorized this court to enter the order you request, or would allow me to say in an i-360 certificate that such circumstances led to my decisions in this matter? and, tell me, how is such reunification impossible because of the neglect, abuse or abandonment by the parents of the child?
where, ms. lloyd, are such facts on the record?
say on the other hand, however, that g_d in heaven offers safe harbor for the maladroit and inept, and that rifqa bary's lawyers are given one more chance to get such matters before the court, on the record, in a form in which the necessary and proper legal showings can be established. so that judge gill can certify in an i-360 certificate that reunification is impossible because of parental abuse, neglect or abandonment in rifqa bary's case.
how should they do that? by angela llody arguing to that effect? no, friends, a lawyer indulging in speechifying is not making a factual case. argument is not evidence, and, in fact, argument is precluded unless premised upon competent evidence: and, no, you cannot argue things which are not in the record.
by rifqa bary testifying, if allowed? well, if the lloyd "legal consortium" has enough sense to put her on the stand, that would be a good start.
but, would you like to know what would be even better?
what would be even better would be if angela lloyd would get off of her legal and intellectual dead butt, and contact pamela geller and ask for the help, that has been proffered to her all along, in putting on a case about the reality of the risk muslim doctrines on apostasy present to rifqa bary, and the reasons that she has a real and primal fear of being returned to her family because of the simple fact that they are devout muslims, from father to mother to brother. in addition, she should put facts on the recored that demonstrate why the noor mosque in columbus, ohio presents a very real danger to rifqa bary's life.
months ago, pamela geller could have given angela lloyd access to stellar legal assistance, and access to academic & theological experts on islamic doctrine and apostasy, as well as to internationally celebrated human rights activists who are themselves living under the threat of islamic apostasy. morever, ms. geller had cultivated relations with the pepperdine university law school clinic on immigration rights, the clinic having successfully sought and obtained favorable immigration status rulings in apostasy situations.
i do not know if pamela geller can still marshal these resources on such short notice. but, if angela lloyd has a brain in her head, and if she is not so prideful so as to foreclose asking for help, she will find out, and she should be burning up the phone lines to get pamela geller right now, asking for help.
we'll see. we'll see. based on prior behavior on ms. lloyd's part, i am not very hopeful. but, miracles do happen. sometimes even law professors turn into capable lawyers.
there has been some discussion that my analyssi of the federal immigration statute is too strict, and that rifqa bary might make application to the immigration court for the sjis even without a finding of parental abuse, neglect or abandonment having caused and currently preventing reunification of the family. these observations premised upon the observation that perhaps a simple adjudication of dependency, on any ground, from a state court having competent jurisdiction over such matters carries the day in federal immigration proceedings.
perhaps.
but, if that were the case, two thoughts immediately come to mind. one, what would be the necessity, therefore, of angela lloyd having sought the relief that she apparentlyr requested from judge gill? if she were of the opinion that she did not need such a finding to proceed before the federal immigration courts, why then did she ask for it: apparently, angela lloyd agrees with my reading of the statute that a showing of parental abuse, neglect or abandonment having caused the dependent child situation is necessary to make to the immigration court. and, two, if the lloyd "legal team" does not need the abuse finding, why then has the lloyd "legal juggernaut" simply not proceeded to get their federal court applications filed in a timely fashion?
john jay @ 04.06.2010
p.s. i am submitting this at an internet cafe, which is going to close, so this goes in without a proof or spell check. i will catch it tomorrow.