Effective Appellate Review                                 By Joseph P. Whalen (May 17, 2012)The issue of “effective appel...
5       See Harris v. Estelle, 583 F.2d 775 (5th Cir.1978); Morgan v. Massey, 526                 F.2d 347 (5th Cir.), cer...
The Third Circuit reiterated on May 17, 2012, the following with regard to certainduties owed by the reviewer but reminds ...
Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987) 9 held:         (1) The immigration judges and the Board lack juris...
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Effective Appellate Review

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Revised May 18th 2012.

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Effective Appellate Review

  1. 1. Effective Appellate Review By Joseph P. Whalen (May 17, 2012)The issue of “effective appellate review”, whether seeking, obtaining, or providingit, is not an issue to be ignored by anyone, or at any stage of proceedings regardlessof the pathways through administrative or judicial review. See United States v.Margetis 1, 975 F.2d at 1177; United States v. Neal, 27 F.3d 1035, 1043-44 (5thCir. 1994)2. The line of judicial cases which address missing portions of trialtranscripts 3 include: United States v. Margetis, 975 F.2d 1175, 1176 (5th Cir.1992); United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977); see also 28U.S.C. § 7534.Margetis, in particular, provides this guidance on this subject: “We have eschewed a mechanistic approach requiring an automatic reversal, however, preferring, as we perceive Selva to authorize, a case-by-case review which requires reversal only when a substantial and significant portion of the transcript is missing.3 In a collateral proceeding under 28 U.S.C. § 2255 the petitioner must demonstrate "a fundamental defect which inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary grounds of fair procedure."4 Selva teaches that omissions from the transcript can jeopardize the defendants right to a meaningful appeal, particularly where he is represented by new counsel. The reviewing court, therefore, must consider whether the missing portion of the transcript prejudiced the defendant by denying him "effective appellate review."5” At ¶ 8 _________________________________ [Foot notes in Original:] 3 The Ninth Circuit recently rejected this approach in favor of remanding all cases to the district court for a determination with respect to any prejudice produced. United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.1990). In light of the result we reach today, we need not address this conflict 4 Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)1 http://law.justia.com/cases/federal/appellate-courts/F2/975/1175/163606/2 See also: USA v. Juan Romero-Trejo, No. 11-20338 (5th Cir May 17, 2012) found at:http://www.ca5.uscourts.gov/opinions/unpub/11/11-20338.0.wpd.pdf3 Immigration Courts routinely record proceedings and provide transcripts in the present system.USCIS and other DHS agencies tend to only have a written record of proceedings (ROP) in mostcases.4 Pertains to Court Reporters in the District Courts. Page 1 of 4
  2. 2. 5 See Harris v. Estelle, 583 F.2d 775 (5th Cir.1978); Morgan v. Massey, 526 F.2d 347 (5th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976)With regard to the administrative appeal path, the immigration agencies (EOIR andDHS) at the very least have the following to draw from.Matter of Briones, 24 I&N Dec. 355 (BIA 2007)5 includes this notable footnote 1: “The Immigration Judge’s original oral decision contains transcription errors that he corrected, both by handwritten interlineation and by issuance of the March 31, 2005, written decision from which the present appeal was taken. We conclude, and the parties do not argue otherwise, that the Immigration Judge’s decision, as corrected, provides a meaningful basis for appellate review.” [Emphasis added.]Matter of Gadda, 23 I&N Dec. 645 (BIA 2003)6, the Board stated the following onpage 647: “The adjudicating official entered the transcript of the hearing before Judge Brott into the record, as agreed by the parties. The parties were given an opportunity to identify any material fact that would necessitate an evidentiary hearing. On August 22, 2002, the adjudicating official issued an order suspending the respondent indefinitely from practice before the Board, the Immigration Courts, and the DHS. Having reviewed the record, which was over 1,000 pages, the adjudicating official found that the “Respondent had ample opportunities to question or call witnesses. The judge’s conclusions are well supported by the facts in the record. There is no suggestion that Respondent was treated unfairly or that his due process rights have been violated in any way.” The adjudicating official further stated that the “Respondent has not denied any of the factual findings made in Judge Brott’s order and there is simply no issue as to any material fact which would require an evidentiary hearing.”” [Emphasis added.]5 http://www.justice.gov/eoir/vll/intdec/vol24/3590.pdf6 http://www.justice.gov/eoir/vll/intdec/vol23/3496.pdf Page 2 of 4
  3. 3. The Third Circuit reiterated on May 17, 2012, the following with regard to certainduties owed by the reviewer but reminds us also that the administrative reviewneed not be exhaustive. “[T]he BIA is required to consider the evidence of changed country conditions presented by a party, but it need not “parse or refute on the record each individual . . . piece of evidence offered by the petitioner.” Nevertheless, it “should provide us with more than cursory, summary or conclusory statements, so that we are able to discern its reasons for declining to afford relief to a petitioner.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006))., 555 F.3d 145, 150 (3d Cir. 2009).” 7 [Emphases added.]Recently, the Seventh Circuit in Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012)8(January 12, 2012) held, in pertinent part: “We are unable to affirm the AAO’s conclusion regarding Siddiqui’s failure to establish continuous residence because the AAO’s decisions lack individualized analysis and do not identify particular deficiencies in the substantial evidence submitted by Siddiqui. ....” [Emphases Added.]Given the range of characterizations as to the desired level of review and the wordschosen by the courts and administrative tribunals, the “fact-finders” below,whether it is an Adjudications Officer, an Immigration Judge (IJ), a District CourtJudge, or the Board Member(s) at the BIA or USCIS Appeals Officers at the AAO,have their work cut out for them. It appears that they must engage in the correctlevel of individualized review needed to properly consider and decide that case.They must include enough specificity on the relevant points, but don’t have to gooverboard. They must present an adequate record of proceedings but, again, thereis some leeway, probably to account for the fact that life is not perfectly orderedand mistakes happen. Ultimately, there must be no violation of due process thatnegatively effects the rights of the petitioner, applicant, respondent, or defendant,as the case may be. Another item to consider is the proper exercise of theappropriate authority and level of it within an appropriate jurisdiction forconsideration such as addressed in the following case.7 See: Feng Chen v. Atty Gen USA, No. 11-4356 (3rd Cir. May 17, 2012) found at:http://www.ca3.uscourts.gov/opinarch/114356np.pdf8 http://www.slideshare.net/BigJoe5/siddiqui-v-holder-et-al-7th-cir-11212-remand Page 3 of 4
  4. 4. Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987) 9 held: (1) The immigration judges and the Board lack jurisdiction in exclusion and deportation proceedings to review a decision by the district director that revocation of a visa petition pursuant to 8 C.F.R. § 205.1(a)(3) (1987) is appropriate following the death of the petitioner. (2) An application for a waiver of inadmissibility under section 212(k) of the Immigration and Nationality Act, 8 U.S.C. § 1182(k) (1982), may be adjudicated by an immigration judge in exclusion proceedings under 8 C.F.R. § 212.10 (1987) without adjournment of the proceedings for consideration of the application by the district director. (3) A waiver of inadmissibility under section 212(k) of the Act was properly denied where the applicant knew about her fathers death prior to issuance of her visa and failed to exercise reasonable diligence in ascertaining its effect on her immigration status.The last subject matter in this essay will be a simple reminder of some basicfundamental concepts. While not exhaustive, here is a list of questions that runthrough my mind, subject to modification as needs arise. • Have the pertinent issues been correctly identified and the questions appropriately framed? • It is a matter of discretion or an entitlement through establishing eligibility as prescribed by law? • Is the evidence being weighed properly? • More precisely, was the correct standard of proof utilized in the weighing of that evidence? • Was the correct standard of review utilized in the analysis of that evidence? • Was all the evidence worth consideration? • How does/did that evidence influence the exercise of judgment? • Has the evidence been viewed in the proper context?9 http://www.justice.gov/eoir/vll/intdec/vol19/3031.pdf Page 4 of 4

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