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An Interesting Turn of Phrase in Seventh Circuit                          By Joseph P. Whalen (February 23, 2012)In a non-...
Invocations: (from the Latin verb invocare "to call on, invoke, to give") may takethe form of:    Supplication or prayer....
The Court continued in a somewhat irate tone (to Counsel rather than the actualpetitioner):      “Why lawyers in immigrati...
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An Interesting Turn of Phrase in Seventh Circuit

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An Interesting Turn of Phrase in Seventh Circuit

  1. 1. An Interesting Turn of Phrase in Seventh Circuit By Joseph P. Whalen (February 23, 2012)In a non-precedential disposition1 issued on February 15th, 2012, a three-judgepanel consisting of Frank H. Easterbrook, Chief Judge, William J. Bauer, CircuitJudge, and Edmond E. Chang, District Judge (of the Northern District of Illinois,sitting by designation) made a point that struck me as worth discussing. I hopesomeone out there can also find some value in this discussionIn Thelma Young v. Eric Holder, Jr., No. 11-2672 (7th Cir. 2-15-2012), the panelstated: “Young contends in this court that the agency violated the due process clause of the fifth amendment by denying her the opportunity to meet the evidence offered in rebuttal. There are several problems with this line of argument. One is that an alien does not have a liberty or property interest in adjustment of status, so the due process clause does not apply. See Portillo- Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011); Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005). ....” At p. 2 ***** “Portillo-Rendon is among many cases in this circuit deprecating ambulatory invocations of due process when statutes or regulations create more concrete entitlements2.” At p. 2 [Bold emphasis added.]This made me want to look up Portillo-Rendon but first I wanted to check thedefinitions of the words used above just to make sure I was understanding itcorrectly. Here goes.Deprecate, deprecating: includes: “to seek to avert” and “to express disapprovalof”. I think either of those will fit what the Court was conveying.Ambulatory: includes: “capable of being altered” <a will is ambulatory until thetestators death> ; or more commonly: “of, relating to, or adapted to walking; also :occurring during a walk” but may also mean: “moving from place to place” orlastly “passing, or in passing”.1 http://www.ca7.uscourts.gov/tmp/FT1BF8RQ.pdf2 I have previously espoused my views on entitlements under the INA. See: Administrative VS. Judicial RemedialPowers And Relief Options at: http://www.ilw.com/articles/2011,1206-whalen.shtm and Entitlement vs.Discretionary Relief or "Administrative Grace" at: http://www.ilw.com/articles/2012,0202-Whalen.shtm Page 1 of 3
  2. 2. Invocations: (from the Latin verb invocare "to call on, invoke, to give") may takethe form of:  Supplication or prayer.  A form of possession.  Command or conjuration.  Self-identification with certain spirits.I favor and lean towards the idea of “conjuration” in this instance. Don’t blame thejudges if I am guessing wrong, it will be my own mistake.So, by the phrase “deprecating ambulatory invocations of due process” were thejudges saying that the cited case was “expressing disapproval” and “seeking toavert” the “passing” attempts to “conjure up” some “due process” “rights” wherenone exist but if they did, they were “violated”—type of arguments? Perhaps andprobably so. Now, I think it would be good to take a look at Portillo-Rendon andsee if I was on the mark or way off base.The Court in Portillo-Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011) explains: “Portillo-Rendon also contends that the agency violated the due process clause. Just where the violation lies, he does not explain. He presents the sort of flabby, unfocused argument that we have deprecated. See, e.g., Magala v. Gonzales, 434 F.3d 523 (7th Cir.2005); Rehman v. Gonzales, 441 F.3d 506 (7th Cir.2006); Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. 2008). The agencys brief observes that an alien does not have either a liberty or a property interest in cancellation of removal, which is discretionary. See Khan v. Mukasey, 517 F.3d 513 (7th Cir.2008). To have a liberty or property interest in some benefit, a person must have a legitimate claim of entitlement, which means an entitlement established by rule; hope for a favorable exercise of administrative discretion does not qualify. See Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). Portillo-Rendons lawyer ignored this problem in his opening brief and did not file a reply brief, which effectively concedes the point.”So, they were referring to a “flabby, unfocused argument”. In addition, thePortillo-Rendon Court also emphasized that an “entitlement” must underlie one’sdue process arguments in these types of cases (BIA challenges). Page 2 of 3
  3. 3. The Court continued in a somewhat irate tone (to Counsel rather than the actualpetitioner): “Why lawyers in immigration cases continue to be fascinated by the due process clause bewilders us—for it is appropriate to consider the Constitution only if the statute and regulations are deficient. Congress has given aliens significant procedural entitlements. See 8 U.S.C. § 1229a. Regulations have added more. Portillo-Rendon does not contend that these entitlements are constitutionally deficient. Nor does he contend that the agency failed to provide him with all process required by the statute and regulations with respect to his moral character. If the agency should fall short, then § 1252(a)(2)(D) would allow us to provide relief on statutory grounds; the lack of a constitutional liberty or property interest would not matter. This is yet another reason why aliens who have procedural objections to the handling of their cases should rely on the statute and the regulations rather than intoning "due process" in the hope that it will cover all bases. It wont.”I am an advocate for arriving at the fair and correct decision in Immigration andNationality cases. I harangue USCIS adjudicators, the BIA, AAO, and lately DOJOffice of Special Counsel (OSC) for making poor decisions or declining to do so.On the other hand, I also implore private practitioners to study harder and refrainfrom ridiculous and frivolous arguments; it hurts their clients and themselves.That’s my two-cent, for the moment. Page 3 of 3

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