More about poor quality of challenges to immigration decisions


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More about poor quality of challenges to immigration decisions

  1. 1. More About Poor Quality of Challenges to Immigration Decisions: The Case for Better Case Preparation & Presentation B y Joseph P. Whalen (May 2, 2012)This recent Sixth Circuit case provides a topical excerpt with which to start thisdiscussion. In the published [precedential] case of Johns v. Holder, ___ F. App’x___, No. 11-3011(6th Cir. May 2, 2012) 1, Judge Jeffrey S. Sutton, writing on behalfof himself and fellow Circuit Judges Boyce F. Martin, Jr. and Raymond M.Kethledge, very skillfully noted the following: “The problem for Johns is that she aims the bulk of her fire not at the legal standards the Board applied but at its assessment of her credibility and the way it weighed the evidence. Consider these arguments: (1) the immigration judge did not fully consider certain pieces of evidence, such as photographs of the couple’s seven-year courtship, their joint tax return, her consistent preference for older men and the five months she spent nursing Rekshan back to health after his heart surgery; (2) the immigration judge made a mountain out of a molehill when he discounted her credibility based on her misstatement that Rekshan was twenty-one (rather than twenty-eight) years older than she was; and (3) the Board erred in concluding that the immigration judge’s misstatement that she filed for divorce in March 2000 (as opposed to March 2001) was “of limited consequence [because] his decision was not based solely on the timing of the divorce.” A.R. 4. All of these arguments challenge the Board’s assessment of the weight and credibility of the evidence, matters that the statute commits to the Attorney General’s “sole discretion.” 8 U.S.C. § 1186a(c)(4). We thus lack jurisdiction to review them. 8 U.S.C. § 1252(a)(2)(B)(ii); see Osei, 2012 WL 516162, at *1; Iliev, 613 F.3d at 1027.” At p. 4 [Reformatted slightly but not a word is changed.]1 Tatiana Johns v. Eric Holder, Jr.: Page 1 of 4
  2. 2. I would have been less motivated to write this essay if the petitioner wasproceeding Pro Se, but she was not. In addition, if I had not just penned anotheressay 2 directly on point the day before this decision showed up in my in-box, Imight have taken a different approach. I view it as providential that this decisioncame when it did and thus facilitates continuation of a discussion on a point that Isee as important and timely.Case preparation and presentation is not a simple matter and in the various contextswithin immigration, nationality, and citizenship law it seems to only get morecomplex as time goes on. “Immigration” practice has progressed from paying headtaxes on boat-loads of colonists to attempting to reading, digesting, and hopefullyunderstanding lengthy legal interpretations via administrative Precedent Decisionsall the way to convoluted Supreme Courts Opinions.In addressing the proffered argument, the opinion continues with: “Garcia-Morales v. Holder, 379 F. App’x 431 (6th Cir. 2010), is not to the contrary. Reviewing the Board’s refusal to grant cancellation of removal—a discretionary remedy—on the ground that the alien had not shown his daughter would suffer extreme hardship, we noted that “[w]e arguably have jurisdiction to review [a] claim that the . . . Board committed legal error by failing to consider all of the . . . factors” set out in a precedential Board opinion. Id. at 434. Whether the Board considered legally prescribed factors is a question of law, while the arguments Johns makes here target only the Board’s assessment of the weight and credibility of the evidence.” “At pp. 4-5A little further on and this opinion makes a point as to the importance of definingthe proper context within which to frame arguments as well as matters important tocase preparation and presentation but most poignantly in weighing evidence. “............................. Even if Mendez is correct that some factual errors can be so severe that they become errors of law in the context of cancellation of removal, a point we need not decide, the hardship-waiver provision says that all weight-of-the-evidence and credibility questions are committed to the discretion of the Attorney General. Id.” At p. 52 Page 2 of 4
  3. 3. The above excerpt illustrates the need for clearly understanding the proper context 3of the case under review and the points at issue. If one asks the wrong questions, itmakes no difference how superbly they answer them. If evidence or argument areirrelevant and immaterial to the case under review or at least to the particular issuein contention then: “Who cares”? There is a danger in making the decision-makerfrustrated with inane and tangential arguments. The petitioner (and counsel) runthe risk of having the reviewing court (and the lower court or the administrativeadjudicator) parsing the arguments and evidence in such a way as to illustrate poorquality of case preparation and presentation.Here is an excerpt that illustrates both: “In this instance, we have no trouble concluding that substantial evidence supports the Board’s decision. As the Board found, Johns had serious credibility problems, bending the truth on several occasions by misstating the couple’s age difference by almost a decade and trying to pass off a letter from a department store informing her of a bounced check as evidence of a joint account. The couple also did not have a joint checking account, evidence indicated they were primarily interested in starting a business together, and Johns spent seven months living apart from Rekshan in Russia during their short marriage. Because the evidence does not compel a contrary conclusion, we have no warrant to set aside the Board’s decision that Johns and Rekshan did not marry in good faith. See Huang, 523 F.3d at 649. III. Johns separately raises three arguments that involve “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Although we have jurisdiction to review each of these arguments, id., none of them justifies setting aside the Board’s order. Johns first argues that the immigration judge was biased because (1) he mischaracterized some pieces of evidence and overlooked others, and (2) he incorrectly chastised her lawyer for failing to file a brief, then spent just a few minutes reviewing the brief before deciding that nothing in it changed his decision.3 An article in Immigration Daily: The Critically Important Role of Proper Context for INA Benefits Purposes,0426-whalen.shtm Page 3 of 4
  4. 4. The judge’s treatment of the evidence alone cannot support a claim of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994); United States v. Blood, 435 F.3d 612, 629 (6th Cir. 2006); Kasa v. Gonzales, 128 F. App’x 435, 440 (6th Cir. 2005). And Johns has not shown that the judge’s abbreviated consideration of her brief prejudiced her, as she must to prevail on this due-process claim. See Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009). She does not tell us what arguments in her brief were overlooked or how those arguments could have altered the outcome of the proceeding.” At pp. 6-7 [Slight format change only.] * * * * *I see certain words and phrases throughout that might be cleverly written jibes orveiled insults. I can see them because I can write them as well. One of thepetitioner’s contentions above centered on a claim of “bias” shown by the IJ’s“mischaracterization” of “some pieces of evidence”. Even not having seen thereferenced “evidence” with my own eyes, I am of the opinion that the IJ probablycalled it what it really was. The real “mischaracterizations” were more likely thannot on the part of the applicant/respondent/petitioner (and counsel) in the initialcase presentation to the IJ.The next contention was the accusation that the IJ “chastised her lawyer” formaking what I might characterize as procedural errors (at best) or incompetence(at worst). It then appears that when making a remedial effort, it was substandard.I join that or any other IJ or adjudicator in chastising any counsel who fails to findand address the actual issues that need attention in a particular case.As the Sixth Circuit noted, “[t]he judge’s treatment of the evidence alone cannotsupport a claim of bias.” I put it to you that the judge’s treatment, i.e., description,and discussion of the evidence presented is one way to express his/her true opinionnot only of the “evidence” but also of a party’s motives, as well as disdain for themanner in which a case has been prepared and presented to him/her. Very often thesame judges deal with the same attorneys and/or BIA accredited representatives ona routine basis. Rather than formally sanctioning or instituting discipline againstthe practitioner, the IJ (or other adjudicator) may send these individuals hidden (orblatant and obvious) messages in their written opinions either intentionally orsubconsciously to tell them to make improvements in case preparation andpresentation, often extending to substantive as well as procedural errors.These are merely the opinions of one observer, you can take it for what it is (if youcan figure out what it is) or ignore it. The choice is yours. That’s my two cents fortoday. Page 4 of 4