US v. Vargas, No. 07-2536 (unpublished). A defendant plead guilty to “illegal re-entry” even though he said that he wanted to contest the due process in the underlying deportation order, but the First says that the guilty plea operates as a waiver on that issue.
In honor of the Olympics, I give you two unpublished decisions holding that Chinese people didn't prove that they were oppressed enough.
Okay, there is more.
I am conflicted. I think most talk of legal ethics is misplaced. I also think that Judge Posner’s talk of law and economics is silly. Legal Ethics Forum contains a link to the NLJ, which talks about how Posner has criticized Immigration Judges. (The article contains a number of embarrassing legal errors (such as confusing IJs with ALJs, but since NLJ is just trying to suck up to BIGLAW, nobody cares.)
Now, here is the rub. Most people would probably agree that many (perhaps most) immigration judges are not taking their job too seriously. And, their job, is to generally find facts on specific cases and to treat people fairly. Sometimes there is a legal issue, but let’s set those thing aside. However Posner doesn’t go into detail about which immigration lawyers are doing a bad job and why not. But hey, I guess bashing unnamed lawyers that represent poor people for a living is always fair game.
Pulisir v. Keisler, No. 07-1356 denies the petition for review of a Protestant Indonesian. He was absent from Indonesia for a large portion of the time. The only issue on appeal with withholding of removal. But, despite those waivers he does manage to get some traction.
Selya admits that findings of past persecution may be “inferred.” He also points out that the Ninth Circuit has held that "[t]he more the group to which an applicant belongs is discriminated against, harassed, or subjected to violence, the less the individualized showing an applicant must make to establish eligibility for asylum." While Selya says that this might be a way to go, he says that the petitioner didn’t explain how the agency made an error of law.
Vallejo Piedrahita v. Mukasey, No. 07-1850 denies a petition for review of a Columbian that might have been persecuted by the FARC. The First says that most of the issues were waived in the opening brief, and the IJ’s Decision was supported by substantial evidence.
Ly v. Mukasey, No. 07-2186 denies a petition for review of a Cambodian that claims to have been a member of the wrong political party. The IJ seems to have gone all out holding, that 1) the petition was untimely; 2) there accounts of persecution were not credible; and 3) if they were credible they weren’t persecution. The First says it doesn’t have jurisdiction over the timing issue. It castigates the IJ for screwing up the credibility determination (i.e. ignoring the context of inconsistences). However, the First does uphold the conclusion that she wouldn’t be persecuted if she returned to Cambodia.
Phal v. Mukasey, No. 07-1223 (4/18/08) denies the petition for review of a Cambodian
claiming political persecution. The IJ
identified a bunch of inconsistencies, and noted that she remained in Cambodia for a few years after the persecution. Not
really much here. But, lots of other
stuff happened on Friday.
Arias-Valencia v. Mukasey, No. 07-1713 (unpublished) denies the petition for review of a Columbian. The First notes that “Arias has avoided immigration officials for nearly twenty years, and in that time he has made a good life for himself. He is married to a U.S. citizen, is raising smart, high-achieving children, and is active at his daughters' school.” However, he seems to miss a lot of deadlines and miss all sorts of hearings. The First denies review and says "Even immigration proceedings must at some point come to an end." Palam-Mazariegos v. Keisler, 504 F.3d 144, 147 (1st Cir. 2007) (our coverage here).
Abdel Malek v. Mukasey, No. 07-1851 affirms the asylum denial of an Coptic Egyptian. The facts (which the IJ found credible) show how screwed up people are in other countries. People go around threatening each other and offering each other money to convert to another religion. The police (but maybe just someone involved in a family squabble) ended up beating him. Despite all this, he appears to have carried on a business and traveled. The IJ said it wasn’t persecution because he could have relocated to another city. And the First says that this is supported by substantial evidence.
The First says it is “troubled” by “the IJ's failure to discuss the substantial documentary evidence regarding conditions in Egypt, which Malek claims provides an objective basis for his fear of future persecution. Coptic Christians clearly face considerable unpleasantness stemming from their religious beliefs.” However, the First decides to back the IJ and says that although the IJ didn’t do that good a job, the petitioner brought it on by relying on theory that didn’t neatly lend itself to the evidence in those documents.
Cuku v. Mukasey, No. 07-1273. An IJ found the petitioner not to be credible, relying on inconsistences and problems with chains of custody. The First says that is okay. It also says the conduct of the IJ is okay. Normally this is all I say. But this draws a dissent from Judge Cyr. Since the Fir st seems to have been rubberstamping a lot of immigration appeals recently, I figure that the dissent is worth analyzing.
Cyr points out that the agency did not completely adopt the IJ’s decision. Indeed, it rejected some of the IJs grounds. Cyr says that the First is misreading the record. Cyr explains how reviewing the combination of IJ decision and board affirmance leads to crappy judging. He writes:
By denying Cuko’s petition for review on this basis, the majority essentially condones and rubber-stamps an undesirable policy and practice: an IJ silently may collect what he perceives as testimonial discrepancies of a latent kind which would not be readily apparent to the asylum applicant or his counsel, offer the applicant no contemporaneous opportunity to explain why his perception is faulty, and then blindside the applicant after the fact with an asylum decision premised entirely on his untested adverse credibility findings. This practice is not only at odds with our clear precedent, but would subvert the essential truth-seeking function of asylum proceedings.
...
Finally, from a broader policy perspective, I would suggest that this case is a prime example of what is so defective with many immigration proceedings. While the IJ reasonably might have accepted Cuko’s credibility arguendo, and then denied his asylum application either on the ground that his ill treatment did not rise to the level of “persecution,” or that the country reports refuted his fear of any future persecution (indeed, we have affirmed many IJ opinions to the effect that country conditions in Albania have changed significantly), the IJ deliberately chose silently to collect a catalog of perceived testimonial discrepancies during the hearing, and then base his final decision solely on Cuko’s lack of credibility. This may seem a relatively insignificant and academic distinction, but to an asylum applicant, it likely affects his sense that he has been given a fair opportunity to state his case for asylum. He is removed to his home country simply because he is a liar, and not because he has not proven past persecution or a well-founded fear of future persecution.
He also goes through the things that the IJ did and concludes that they were not really supportable. Whatever. I never though that the First was taking these things too seriously. For other problems with the First’s Albanian-Asylum “jurisprudence” see here.
Tandayu v. Gonzales, No. 07-1738. The petitioner in this asylum case is an Indonesian Christian. The petitioner tried to reopen it a couple of times with articles or materials showing conditions in Indonesia. The First says it wasn’t an abuse of discretion.
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