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Absolute immunity in properly conducted agency adjudications


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Absolute immunity in properly conducted agency adjudications

  1. 1. Absolute Immunity In Properly Conducted Agency AdjudicationsThe principle underlying basic presumption expressed by the Supreme Court is thatexecutive branch agencies charged with adjudicatory functions will adoptprocedures that safeguard fundamental rights. In this time of change, USCISshould act in concert with the views already expressed in certain key cases.Butz v. Economou, 438 U.S. 478 (1978)1, Decided June 29, 1978 held, inpertinent part:4. Although a qualified immunity from damages liability should be the generalrule for executive officials charged with constitutional violations, there are someofficials whose special functions require a full exemption from liability. Pp. 438U. S. 508-517. (a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Pp. 438 U. S. 508-514. (b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding, subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. Pp. 438 U. S. 515-516. (c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of1 1
  2. 2. the prosecutor who brings evidence before a court, and, since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. Pp. 438 U. S. 516-517.Mathews v. Eldridge, 424 U.S. 319 (1976)2 Decided February 24, 1976,held in pertinent part:2. An evidentiary hearing is not required prior to the termination of Social Securitydisability payments, and the administrative procedures prescribed under the Actfully comport with due process. Pp. 424 U. S. 332-349. (a) "[D]ue process is flexible and calls for such procedural protections as the particular situation demands," Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481. Resolution of the issue here involving the constitutional sufficiency of administrative procedures prior to the initial termination of benefits and pending review, requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Governments interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Pp. 424 U. S. 332-335.Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999)3, Decided by the Boardon November 23, 1999, the majority held: “In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law.” *****(MAJORITY) ORDER: The motion is denied.2 The whole decision is 13 pages long and found at: 2
  3. 3. From The DISSENTING OPINION : Lory Diana Rosenberg, Board Member, inwhich Gustavo D. Villageliu and John Guendelsberger, Board Members, joined(Dissent begins on page 1138.) “I. THE EXERCISE OF SUA SPONTE AUTHORITYOur regulations empower us to reopen or reconsider sua sponte any case in whichwe have rendered a decision. See 8 C.F.R. § 3.2(a). We also possess the authorityto certify cases to ourselves. See 8 C.F.R. § 3.1(c) (1999). As long as we remainwithin our appellate and subject matter jurisdiction, these discretionary powers arenot limited, restricted, or qualified. The regulation at 8 C.F.R. § 3.1(d)(1)specifically delegates to this Board the Attorney General’s authority to exercisediscretion “as is appropriate and necessary for the disposition of the case.” Thus,Congress and the Attorney General have entrusted us with considerable latitude tointervene in individual cases where fundamental fairness and the interests of justiceso warrant. See Matter of Roman , 19 I&N Dec. 855, 856-57 (BIA 1988)(permitting collateral attack on a prior proceeding where there was “a grossmiscarriage of justice” in that proceeding); see also Matter of Ng , 17 I&N Dec. 63(BIA 1979) (involving a grant of nunc pro tunc permission to reapply foradmission after deportation); Matter of Ducret , 15 I&N Dec. 620 (BIA 1976)(same); Matter of Vrettakos , 14 I&N Dec. 593 (BIA 1973, 1974) (same); Matter ofS-N- , 6 I&N Dec. 73 (BIA, A.G. 1954).In determining whether to exercise our delegated power under 8 C.F.R. § 3.2(a) toreopen and reconsider the respondent’s claim, sua sponte, we should apply the testprescribed in Mathews v. Eldridge , 424 U.S. 319, 335 (1976), which takes intoaccount three factors: the interest at stake for the individual; the risk of erroneousdeprivation of that interest; and the Government’s administrative burden. SeePadilla-Agustin v. INS , 21 F.3d 970 (9th Cir. 1994); Hernandez v. Cremer , 913F.2d 230 (5th Cir. 1990); Haitian Refugee Center, Inc. v. Nelson , 872 F.2d 1555(11th Cir. 1989), aff’d sub nom. McNary v. Haitian Refugee Center, Inc., 498 U.S.479 (1991).In balancing these factors, we conclude that the respondent’s individualinterest in a correct adjudication of his asylum claim leading to asylumprotection in this country, and the danger of persecution he faces if returnedto his country, outweighs the governmental interest in regulated time limits onthe filing of motions or finality in immigration proceedings. See Kossov v. INS,132 F.3d 405, 408 (7th Cir. 1998) (finding a fundamental failure of due processwarranting a sua sponte remand where asylum applicants were not advised of their 3
  4. 4. right to apply for asylum); see also Nazarova v. INS, 171 F.3d 478, 482-83 (7thCir. 1999) (citing The Japanese Immigrant Case, 189 U.S. 86 (1903)); Asani v.INS, 154 F.3d 719, 728 (7th Cir. 1998) (concluding that the Board should haveinvoked its sua sponte authority to remand the case so that respondents could applyfor suspension of deportation). We note, in addition, that in cases involving claimsof persecution, the United States Government purportedly shares the respondent’sinterest in seeing that he is not wrongly returned to a country where he has faced oris likely to face persecution on account of a characteristic protected under therefugee definition.We recognize that the respondent had an opportunity to set forth his claim ofrepeated incidents of mistreatment on account of his Jewish identity in whatpreviously may have appeared to constitute a full and fair hearing, see Matterof G-D-, Interim Decision 3418, at 5 (BIA 1999); however, that hearing resultedin a denial of asylum that is called into question by our subsequent issuance ofMatter of O-Z- & I-Z-, supra. Thus, this is not a situation in which there is noarguable lack of due process “because Petitioner had the benefit of a full hearing,against which he lodges no complaints.” Cf. Dielmann v. INS, 34 F.3d 851, 853(9th Cir. 1994) (rejecting a due process claim as “quite vague”). By contrast, therespondent’s motion is precise and sets forth the exact basis on which our priordenial of asylum would now not stand under Board precedent.In Matter of J-J-, 21 I&N Dec. 976 (BIA 1997), we explained that our sua sponteauthority to reopen or reconsider cases was not intended as a general cure for filingdefects or personal hardships. Citing Matter of J-J-, supra , the majority heretrivializes the respondent’s situation, implicitly casting his inability to reopenproceedings as a “hardship”—and a fairly common one at that. The respondent isnot, however, asking us to remedy a “hardship”; he is asserting, correctly, thataccording to our own precedent in Matter of O-Z- & I-Z- , supra, he is eligible forasylum and that his case was wrongly decided by this Board. This is not asituation in which we may turn a blind eye in the name of administrativeefficiency. .....” *****The majority holding once again was: “In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to 4
  5. 5. reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law.”How can any part of that apply to Administrative Appellate Reform efforts? “In order for a change in the law to qualify as SOMETHING that merits the exercise of discretion OR JUDGMENT OR AUTHORITY by ANYBODY to DO ANYTHING, the change must be fundamental in nature and not merely an incremental development IN ANY GIVEN CONTEXT OR SITUATIION UNDER REVIEW OR in the state of the law.”It seems rather obvious that one fundamental change could quite naturally be animpetus for commensurate changes in associated ancillary4 matters. Suchadditional changes might themselves be fundamental or very close to it. Thenripple effects might extend far and wide. Sometimes, distance from the epicenter ora bird’s eye view helps one gain perspective.The Homeland Security Act of 2002 (HSA) was a fundamental change. Statutoryauthority shifted and a brand new Cabinet Secretary and huge executive branchdepartment came into being. The creation of the Department of HomelandSecurity, the abolishment of the Immigration and Naturalization Service, theformation of U.S. Citizenship and Immigration Services and the assignment of theAdministrative Appeals Office (AAO) within a benefits granting agency are allfundamental changes. The exercise of sua sponte authority is but one ancillarymatter to be reexamined in a new benefit-granting agency context rather than froman old law enforcement perspective.USCIS’ AAO needs to be bold in writing long overdue new regulations. It is saferto be proactive in framing and establishing fair and comprehensive procedures thanvague and “open to interpretation” in a judicial challenge.4 an·cil·lar·y definition by GoogleAdjective: Providing necessary support to the primary activities or operation of an organization,institution, industry, or system.Noun: A person whose work provides necessary support to the primary activities of anorganization, institution, or industry. 5