CA1: Did they really love each other when they got married? Another IJ remand.

Cho v. Gonzales, No. 04-1437 is a freakin’ important immigration decision.  I know this, not because I follow this area of law closely, but because there are amicus briefs from the NLJ, and other do-gooders.  It includes the typical remand to an IJ because they don't care about making real findings of fact, but instead opt to seize on one thing proved by the government, and conclude that the reset of the petitioner's argument is bunk, and resolves a jurisdictional issue.

This case holds that when “an alien who marries a United States citizen is entitled to petition for permanent residency on a conditional basis” but later divorces, but wishes to stay in the US and apply for a hardship waiver, the “the relevant legal standard is, again, whether [the petitioner] intended to establish a life with her spouse at the time [they] married [them].” 

The First Circuit found that the IJ and the BIA (as usual) seemed to analyze the timing of the marriage in isolation, and did not look at any other facts proven at hearings, and so mere “timing” is not enough to base a finding on.

OIL for some reason made the argument that the court “lack[s] power to consider the petition under a permanent, jurisdiction-stripping statute enacted into law as part of the Immigration Reform and Immigrant Responsibility Act of 1996.”  The court found that it had jurisdiction because based on 1) precedent; and 2) reasoning that Congress would have made the AG’s absolute discretion more clear if was really a complete jurisdiction-stripping statute, and concluded that .“...the final agency order in this case would not be the Attorney General's rejection of Cho's application for a hardship waiver. Rather, it would be the removal order itself, which is the final decision of the Attorney General that we have jurisdiction to review under 8 U.S.C. § 1252(a)(1).”

Oh, speaking of that, some lawyers think that terrorists are using our system of laws to hurt us.  What a crock. 

Comments

[Anonymous]

The disdain for IJs reflected by your post is common among law snobs.

That disdain (among law snobs) is exacerbated by the fact that the federal courts only see the decisions where an immigrant is denied relief. It is further exacerbated by the fact that when a published opinion is deemed necessary, it is usually because the IJ made an error in applying the law, and vacatur or reversal is necessary.

In short, "The more you know . . . " and all that jazz.

[s.cotus]

Since 9/11, IJs have not been taking their job seriously, and it shows. Factual findings are not just random determinations about “credibility” but require actually listening to the parties. IJs don't seem to get it, they just like calling people “liars.”

Yes, we are law snobs. IJs are lawyers. In fact, most of them were “law snobs” before they were IJs, as they would all make fun of immigration lawyers in private practice. Now, when they get a chance to operate on their own with some (unfortunately minimal) independence, they demonstrate that they can't take their job seriously.

Now, notice that this doesn't happen with ALJs or factual findings made by District Court judges. Maybe they take their jobs more seriously, maybe they have more time, or maybe they don't see themselves as working for the same agency that they are supposed to review.

Whatever the case the current state of affairs is an embarrassment. The proposed solutions have been to 1) have immigration matters decided by ALJs with more independence and less so people won't think that they are “captured” by the agency; 2) have immigration decisions made by a US Magistrate Judge; or 3) create a separate Art I court to hear immigration decisions.

[Anonymous]

Would it surprise you to know that in NYC last year, over 60% of asylum applications (grants versus denials) heard by IJs were granted?

Would it surprise you that the national average is around 40%?

Would it surprise you that this is over and above the asylum applications (a huge number) approved by DHS that never get heard by an IJ?

Its easy to assume that IJs are terrible based on the following: (1) law snobbery ("ugh, who would want to be an IJ?"); (2) that post 9/11, IJ's "must be kicking all the immigrants out"; and (3) the myopia caused by the fact that the federal courts only see the cases in which the IJ rules against the immigrant.

Now, I'm not saying that IJ's don't make mistakes. I would make the same mistakes if I had the bursting-at-the-seams caseload that IJ's have. But if you have a gripe, it's with GWB and Congress, not with the IJs.

[S.cotus]

Percentages might surprise me, or they might not. One would need to put these things into perspective, and your figures do not do these things.

For better or worse the AG chose to “reform” the BIA, and as a result it doesn’t seem to have the energy or the willpower to take appeals seriously, so there are so many one-line affirmances. So, my grip is with the AG, but the AG did not do anything wrong. He made a policy decision that was properly delegated to him by Congress.

IJs, on the other hand, are supposed to be neutral fact-finders who provide immigrants with due process and make unbiased findings of fact. If they are overburdened, it is unethical to start cutting corners. Instead, they can simply say that they find that the immigrants due process rights are violated by a particular caseload. That would be an extreme measure, but if one is going to be an impartial fact-finder, it isn’t enough to say “Oh, I have so much work, I am going to do a sloppy job.” Maybe not having enough IJs is the fault of Congress or the president, but since IJs think that the solution is to shirk their responsibilities, rather than act like judges, then I place the blame on them.

To comment on your specific points:

Law snobbery is present amongst all lawyers, and if by the time you are a 2L, much less practicing for 20 years, you should be used to it. However, the remands of DCT decisions where factual findings are made are not nearly as harsh.

Post-9/11, as I said, the structure of the BIA changed, but many people seem to think that IJs feel that they are just a cog in the machine that kicks immigrants out when a few people decide that it is necessary.

(It is worth noting that federal courts see immigration cases where IJs ruled in favor of the immigrant, but the BIA reversed.)

[Anonymous]

I don't disagree that there may be some bad IJs out there, just like there are some bad district court and appellate judges out there. But your view is that IJs are systematically worse.

But surely this view is influenced by the fact that the only decisions you see are denials of relief to poor immigrants yearning to live the american dream. It's the same story with social security appeals, and the law snob view of the ALJs working in the SSA is unsurprisingly similar.

So what would your view be if in addition to the 40% of asylum applications that are denied (out of NYC, one of the "big four" immigration courts), you also saw the 60% that were granted. Your view of the IJs might be radically different.

[S.cotus]

Percentages don't mean much to me. All that matters to me is that since 9/11, the reversals are many, and they are usually on grounds that any judge who took his fact-finder role seriously could have avoided.

My view of IJs is worse because they have much less (in fact, I would argue, NO) independence from the executive branch. They can be dismissed. US District Court Judges, in all practicality cannot be, so even if they spent 20 years with the DOJ, within a few months they will start to think outside what they learned at DOJ training programs.

On top of that, IJs almost always come from the ranks of the people who appear before them on behalf of the government. If Congress could directly screen the judges there might be a bit more diversity of background. (And I don't think this would really be a political issue, as there seems to be agreement between "crazy religious conservatives" and "bleeding heart liberals" on a lot of asylum issues.)

It really doesn’t matter to me what percentage are granted or denied. What matters is that the courts keep reversing because they just don’t seem to think of themselves as judges, except when it comes to being egotistical. See Alarcon-Chavez v. Gonzales http://tinyurl.com/9n9ym