The Court of Star Chamber   Leave a comment

First, a history lesson…

Once upon a time in a kingdom far away, there existed a judicial body known as the Court of Star Chamber.  Despite its charming name and surroundings (a chamber having a ceiling painting of the night sky, complete with stars), the Court was anything but.

The Court of Star Chamber began in medieval England as a supplement to the country’s common law courts in the late 1480s.  Staffed with judges and Privy Councillors in favor with the King, it became an effective tool used by Henry VII to break the landed gentry and secure the House of Tudor’s claim to England’s throne.

Henry VIII employed it to uphold the law when corruption and influence dominated England’s judicial system and to dispense adequate remedies beyond those handed down by common law courts.  Star Chamber had authority to hear cases against powerful nobles lacked by other courts.  Henry used it to keep the rising power of nobles and landed gentry alike in check.  Commoners were encouraged to introduce cases against them directly into Star Chamber, bypassing other courts.

More pointedly, Star Chamber’s powers were sweeping.  It required no juries, indictments or witnesses for conviction.  Trials were secret.  Evidence was presented solely on paper.  Defendants were compelled to testify against themselves.

Moreover, as a court of equity, it had the power to punish defendants for committing “crimes” found nowhere in legal code, but deemed by Court jurists as morally reprehensible activities that should be punishable crimes.  Verdicts and sentences were often arbitrary and subjective.  No right of appeal was allowed.

Definitions of several commonly prosecuted crimes today – assault, intent, libel and perjury – have their roots in the Court of Star Chamber.  Short of death, it could impose penalties at will, many fitting today’s definition of ‘cruel and unusual punishment’.

Star Chamber saw few cases during a brief period following Henry VIII’s death but did not disappear completely.  Revived in the early 1500s, its powers grew.

By the time of James I in the early 1600s, Star Chamber became synonymous with the use and misuse of power by the Crown to quash opposition.  It operated like an inquisition.  King Charles I used it to persecute Puritans and other dissenters for political libel and treason.  When Charles abolished Parliament, establishing 11 years of his personal rule, Star Chamber became his Parliament.

The Court of Star Chamber evolved into a beast that had to be slain.  An act of Britain’s revived Parliament in 1641 succeeded in putting a final end to it and its abuses of power.

Its influence did not end there.  Writers of the U.S. Constitution had the Court of Star Chamber in mind when they included the 5th Amendment’s guarantee against self-incrimination.

Fast forward to 2011.  Imagine learning that a case against you was held in a closed court before a judge, without indictment, witnesses or right of appeal, using paper evidence, and you were not invited to attend your own trial or even notified of its scheduling…and it happened in the United States of America.

It’s legal…perfectly legal.  They are known as Administrative Law Courts, a quasi-judicial body created to hear and settle disputes surrounding the interpretation of regulations made by federal and state governmental agencies and departments.  (Regulations and laws are two different things; legislative bodies create laws delegating oversight to agencies, which in turn create regulations.)   For example, cases involving complaints of workplace safety violations may be heard in an Occupational Safety and Health Administration (OSHA) administrative law court.

Finding federal agency rules and regulations is an arduous task.  They are squirreled away in the Code of Federal Regulations, an enormous collection of law books containing the regulations of every federal agency (the Immigration and Naturalization Service is one).  The task of looking them up requires special research skills, access to a law library or subscription to an on-line legal database and time – the latter of which I did not have.

The INS website is full of information telling foreign nationals how to apply for a visa to legally live and work in the U.S.  Information about how to remain in compliance with INS regulations and rules is notoriously absent.  For that, immigrants with means consult an immigration lawyer.  Those without consult unofficial on-line discussion boards or proceed in ignorance.

As the holder of three paralegal certificates (general, business and employment law), I confess to INS regulations being a tough nut I cannot crack without the necessary tools at my disposal.

Since November, Paul heard nothing from the INS.  As moving day drew closer, we laughed, thinking that we could be gone before receiving their response to his petition for a change in status from TN guest worker to visitor.

On the day North American picked up our belongings from the workshop and storage, INS reared its ugly head.  By this time, their decision was moot; we were leaving the U.S.  That knowledge didn’t thwart our enthusiasm for a good laugh.

Petition denied.  The decision was final.  No appeal allowed.

The standard INS form for change in visa status explains that decisions to change or extend status are made in a hearing.  Reading the form, it never clicked that the term “hearing” is an INS euphemism for an Administrative Law Court.

My reaction went from laughter to anger as I read the Administrative Law Judge’s ruling.  Paul’s petition was denied because he filed for a change in status from work visa to visitor after losing the job which gave him the legal right to live in the U.S.  There was no quibbling that point.  INS rules put the burden of compliance totally on the backs of immigrants, not the employers who carelessly discharge them without notice.  This is understood and is not a matter of dispute.

However, the date received and location indicated by INS as to when Paul’s petition landed in their offices bore no relation to reality.  INS claimed the petition was received on December 10, 2010 at an office in California.  Paul did not send his petition to California; it was sent to Fort Worth, TX per INS instructions.  The judgment omitted mention of the initial receipt of the petition and request for additional information made by the Fort Worth processing office back in November, nor of the review and date-stamping of that same original petition for completeness by an INS official in Minnesota within a week of its return to Paul.

The final judgment didn’t clearly state a deadline by which Paul had to leave the U.S. before facing forcible deportation.

INS creates regulations deeming work visa holders immediately “out of status” the day they unexpectedly lose their jobs for any reason; INS faces no accountability for its clerical and other errors; it re-routes petitions from one INS office to another without noting the date received at the original office to which petitions are sent; it conducts closed proceedings to hear petitions by introducing evidence solely on paper, without juries and without testimony by witnesses.  It hears a petitioner’s grievance without even as much as inviting the petitioner to his or her own party or informing them where and when the party is held.

The INS Administrative Law Court reeked of The Court of Star Chamber.

I do not blame the administrative law judge who made the ruling.  Rules are rules; their job is to determine whether all regulations are followed.

The INS rules, regulations and procedures are crazy.  Could the INS officials who make them up lose their jobs unexpectedly without notice and be out of the country that very night by midnight?  I think not.

Why is the onus for following regulations solely on the immigrant and not their employer/sponsors who discharge them carelessly without notice while disregarding the protocol desired by INS?  Why must a ‘guest worker’ be sponsored by an employer?

One shouldn’t need to consult a lawyer to learn how to comply with INS rules.  That should be a DIY proposition for any immigrant having a reasonably good knowledge of English.  The rules should be clear, concise and readily available to everyone at any time.

I oppose arbitrary office administration procedures, regulations which put the onus for compliance on only one of two parties, closed hearings, hiding information, regulations creating a class of indentured foreign national servants and the enforcement of rules with which no human can reasonably comply.  These have no place in the United States of America.

Don’t mistake me.  I’m not anti-government.  I am not a Libertarian.  I’m not opposed to the existence of government agencies nor their right to create regulations.

The U.S. immigration system needs to be torn down and rebuilt from the bottom up, this time with an understanding of reality, openness and fairness.  Case closed.


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