CA1: First invents doctrine of country-based stare decisis
Rroshi v. Gonzales, No. 06-1329 (unpublished). This First really screwed this up.
The asylum petitioner is an Albanian Kulack, and an opponent of the old communist regime. Citing Tota v. Gonzales, 457 F.3d 161 (1st Cir. 2006) (our coverage here), the First finds that although he president the IJ and the BIA with credible evidence of past persecution, Albania has gotten better, and therefore there is less of a chance f future persecution. But then the First does something horribly wrong! It says, “Only a short period of time has passed since our decision in Tota, and there has been no evidence presented that the situation has worsened in Albania in that period. Therefore, we follow our decision in Tota and deny the petition for review.”
What! The First is using the fact that it affirmed an earlier case to preclude another petitioner from getting a full review of the proceedings below. Words can’t begin to explain how bad this is. Let’s put it this way: Mr. Rroshi is not Mr. Tota. They may have completely different sets of evidence. Mr. Tota might have put on a bad case, with bad witnesses. Mr. Rroshi might have put on a good case, and the IJ might have not even taken him seriously. Immigration cases are not administrative rulemakings. They are case-specific trials. The First has essentially held that one asylum petitioner can bind his countrymen. Now, if Mr. Rroshi and MR. Tota had some privity, maybe a res judicata argument could be made. But, the only thing that binds them is, apparently, their ethnicity, and the fact that they don’t like commies.
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