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Prohibited divide and conquer analysis in appellate review

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Beware and be aware of this unacceptable practice which may far too easily be accidentally applied.

Beware and be aware of this unacceptable practice which may far too easily be accidentally applied.

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  • 1. Prohibited Divide-and-Conquer Analysis in Appellate Review By Joseph P. Whalen (September 16, 2012)The Ninth Circuit posted some of Monday’s case decisions a little bit early onSaturday September 15, 2012. One of them is USA v. Varela, No 11-10448 (ninthCir. 9-17-2012) (unpublished) which inspired this essay. One particular portion ofthe panel’s extremely short analysis leaped from the page at me. Here is thatinspiring passage with the key phrased highlighted for emphasis: “We reject Varela’s argument that the district court’s reliance on certain factors (such as Varela’s failure to acknowledge Sifuentes, and Varela’s orange hunting cap) was impermissible. The Supreme Court has prohibited courts “from adopting a ‘divide-and-conquer analysis’ by looking at each factor in isolation and according it no weight if it is susceptible to an innocent explanation.” United States v. Berber-Tinoco, 510 F.3d 1083, 1088 (9th Cir. 2007) (quoting Arvizu, 534 U.S. at 274). And in any event, the remaining factors supported a determination that Sifuentes had reasonable suspicion.”I started looking for which decision actually used the terms “officer experience”and “divide-and-conquer analysis”. I began with the Supreme Court case citedabove as having been quoted for “divide-and-conquer”. The syllabus for Arvizustates, “Terry v. Ohio, 392 U. S. 1, however, precludes this sort of divide-and-conquer analysis.” However, I also looked further after finding that cite.United States v. Arvizu - 534 U.S. 266 (2002), was a case involving a BorderPatrol Officer relying on experience to quickly asses the totality of thecircumstances staring him in the face in deciding to make a traffic stop. He drewon his “own experiences and specialized training to make inferences from anddeductions about the cumulative information available.” The Ninth Circuitimproperly parsed the individual factors later articulated by that Officer in hisreport (in hindsight and after-the-fact) in isolation and shot them down as much asthey could (discarding 7 out of ten factors articulated) in order to turn what inreality was a permissible investigatory stop based on reasonable suspicion giventhe totality of the circumstances into an unworkable overly complicated frameworksuch that few if any Officers in the field would ever again be able to justify almostany stop whatsoever! {I did not find the exact term “officer experience” yet.} Page 1 of 4
  • 2. The Supreme Court reversed the Ninth Circuit, citing to numerous earlier cases inits continuing effort to clarify that: “The de novo standard for appellate review of reasonable suspicion determinations has, inter alia, a tendency to unify precedent and a capacity to provide law enforcement officers the tools to reach the correct decision beforehand. Ornelas v. United States, 517 U. S. 690, 691, 697–698.”Where to next? The quote from Berber-Tinoco was also just quoting Arvizu for“divide-and conquer”. In Varela, the term “officer experience,” was attributed toUnited States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997), so that wasthe next stop from here. Garcia-Barron provides a nice synopsis on the subject ofreasonable suspicion for a Border Patrol Officer to make a stop such as involved inthese similar cases. Here is that excerpt. “In the context of Border Patrol searches, the factors to be considered in determining whether "reasonable suspicion" exists to justify stopping a vehicle include, but are not limited to: 1) characteristics of the area; 2) proximity to the border; 3) usual patterns of traffic and time of day; 4) previous alien or drug smuggling in the area; 5) behavior of the driver, including "obvious attempts to evade officers"; 6) appearance or behavior of passengers; 7) model and appearance of the vehicle; and, 8) officer experience. United States v. Brignoni- Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975).”I am satisfied with that but went and looked through Brignoni-Ponce anyway andhere is an excerpt from that which will lead us back to Terry, cited above, Terry isfrom 1968, which was shortly after Miranda if you had not noticed. Because of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest. In Terry v.Ohio, supra, the Court declined expressly to decide whether facts not amounting to probable cause could justify an "investigative `seizure " short of an arrest, 392 U. S., at 19 n. 16, but it approved a limited search—a pat-down for weapons—for the protection of an officer investigating suspicious behavior of persons he reasonably believed to be armed and dangerous. The Court approved such a search on facts that did not constitute probable cause to believe the suspects guilty of a crime, requiring only that "the police officer . . . be able to point to specific and articulable facts which, taken together with rational inferences from Page 2 of 4
  • 3. those facts, reasonably warrant" a belief that his safety or that of others is in danger. Id., at 21; see id., at 27.Once arriving here, I looked back up the page as I was writing and saw that I hadyet to even look at Ornelas v. United States, 517 U. S. 690 (1996). Why was thatcase cited above? Oh yeah, I wanted to pursue the concept of : “The de novo standard for appellate review ... [having] a tendency to unify precedent and a capacity to provide ... officers the tools to reach the correct decision...”.I admit that that court was really talking about reviewing stops of individuals onthe street or along a less travelled road and that they might have been much moreconcerned with racial and ethnic profiling but I find that many valid concepts areuseful across multiple contexts. This time I am honing in on the standard ofreview alone and the underlying goals, objectives, and functions of the de novostandard because, that is the primary standard used by the Administrative AppealsOffice (AAO), which is the appellate body of DHS’ “Benefits Granting Agency”;U.S. Citizenship and Immigration Services (USCIS). Even after a decade, the dusthas still not settled completely from the abolishment of INS and the separation ofthe broader Benefits and Enforcement function into divided DHS Agencies. I hopethat essays such as this will aid in the AAO Reform Rulemaking which goesfurther overdue with each passing day. In January 2012, the DHS RegulatoryAgenda stated it anticipated this NPRM from AAO in March 2012, and ...well...check the date on this essay (Sept. 16, 2012) and still nothing from AAO.In Ornelas, the justices stated, in pertinent part: “... The [Seventh Circuit] Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed “deferentially,” and “for clear error.” We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.” At 691So, there are certain types of decisions that should be reviewed under specificstandards of appellate review. That is something that AAO needs to work outbetter. On the one hand, retaining an ultimate plenary authority to step in when anerror is discovered can be a good thing. On the other hand, there do need to belimits on some things. That said, determining which is which and when to do whatis probably something that is long overdue for notice-and-comment rulemaking. Page 3 of 4
  • 4. Getting back to the “dive-and-conquer analysis” prohibition which inspired thisessay and I can think of one particular context in which this mentality has reared itsugly head. [To be honest, I can think of more than one but I will only address oneat this time.] The extraordinary ability immigrant visa classification (EB-1A)petitions have gotten quite a lot of attention lately and for good reasons. ServiceCenter adjudicators and AAO Appeals Officers were trapped in the “divide-and-conquer analysis” mode until the Ninth Circuit, having learned from its own pastmistakes cited above, spoke up in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir.2010) (March 4, 2010) and upheld that approach in Rijal v. United StatesCitizenship & Immigration Servs. 772 F.Supp. 2d 1339 (W.D. Wash. 2011)1.In these cases, as I see it, USCIS and AAO went to too great of an effort to reach adenial decision. In the end, the decisions were correct. It was merely the analyticalapproach that was wrong. What the earlier Supreme Court and Circuit Courtdecisions termed as “divide-and-conquer analysis” could, for extraordinary abilityvisa determinations, as easily be described as “seek-and-destroy missions againstthe evidence” in an over-the-top attempt to reach “no” as an answer to a benefitsrequest. As stated, the ultimate answers were correct and upheld in the finalanalysis. However, strong exception was taken in the preliminary or interim resultsduring the quantitative portion of the two-part analysis. The initial adjudicators andAAO reviewers overstepped into the qualitative analysis and evaluationprematurely on the question of the “totality of the evidence” and conflated issues.The individual evidence criteria were improperly artificially inflated such that noneof the evidence was found sufficient to meet an initial threshold showing thatwould allow for a proper answer to the ultimate question of eligibility based on anassessment of the “totality of the evidence” presented. Where USCIS and AAOfound zero criteria had been met, the Ninth Circuit found that some discardedevidence did meet the initial threshold or as they put it—answered an antecedentprocedural question, but failed on the “totality” in a final merits determination(what I call the qualitative analysis and evaluation portion of the Kazarian two-part analysis). Please give these consideration some thought.That’s my two-cents, for now.E-mail me at: joseph.whalen774@gmail.com1 The Ninth Circuit “adopted as its own” (as a 2nd precedent on topic, as Kazarian’s 1st progeny)the District Court Opinion in Rijal without changing one word. Page 4 of 4

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