Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
Multiple Prongs and Multiple Steps Have            Similarities and Differences                           By Joseph P. Wha...
make a factual finding as to the first prong. See INS v. Bagamasbad, 429 U.S. 24,      25 (1976) (“As a general rule court...
next step; or demonstrate full eligibility and be granted the requested benefit orrelief. To paraphrase the Supreme Court ...
The next part of this essay will present the context of evaluating extraordinaryability immigrant visa petitions (USCIS Fo...
Upcoming SlideShare
Loading in …5
×

Multiple Prongs and Multiple Steps Have Similarities and Differences

508 views

Published on

  • Be the first to comment

  • Be the first to like this

Multiple Prongs and Multiple Steps Have Similarities and Differences

  1. 1. Multiple Prongs and Multiple Steps Have Similarities and Differences By Joseph P. Whalen (September 12, 2012)The Third Circuit Court of Appeals posted a Precedential Decision in the case ofFitzroy Gerald GREEN v. Atty Gen USA, No. 11-3732, on September 12, 2012.That decision contains a discussion of the “Kaplun test” so named for a 2010,Precedent. See Kaplun v. Attorney General of the United States, 602 F.3d 260 (3dCir. 2010). Kaplun contains a two-prong “test” consisting of two questions. Bothmust have satisfactory answers in order for the claimant to succeed in a CAT 1based request for deferral of removal. The following excerpt is from Green. “B. Kaplun Test Green next argues that the IJ and BIA failed to apply the two-prong test undertaken by our Court in Kaplun. In Kaplun, we stated that whether future torture was likely turned on two questions: “(1) what is likely to happen to the petitioner if removed; and (2) does what is likely to happen amount to the legal definition of torture?” 602 F.3d at 271. In reviewing Green’s CAT application, the IJ assumed arguendo that the Shower Posse would try to harm Green, and then based her decision on the fact that this potential harm would not meet the legal definition of torture due to the lack of government involvement or acquiescence. The BIA followed the same approach, assuming a likelihood of harm under the first Kaplun prong and then determining that this harm would not meet the legal definition of torture under the second Kaplun prong. Green complains that it was error to assume harm under the first prong of the test and that the IJ and BIA instead were required to make an actual factual finding on that point. This is a legal argument which we have jurisdiction to consider. The argument, however, is unconvincing for several reasons. First, Green failed to raise this Kaplun argument before the BIA, and a strong case can be made that he has not exhausted his administrative remedies and thus cannot raise the argument here for the first time. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 120-21 (3d Cir. 2008). Even if he can raise this argument, however, Kaplun does not “specifically require[]” the IJ to make an actual finding as to each prong of the test. (Pet’r’s Br. 11.) Rather, Kaplun states only that “there are two distinct parts” to the analysis and that “[t]he two parts should be examined separately.” 602 F.3d at 271. Green bears the burden of showing both that he would likely suffer harm if returned to Jamaica and that the harm would amount to the legal definition of torture. Because the IJ and the BIA determined that Green had failed to satisfy the second prong of the Kaplun test, there was no need to1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Page 1 of 4
  2. 2. make a factual finding as to the first prong. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). Accordingly, Green’s argument that the IJ and BIA misapplied Kaplun is without merit.” Green at pp. 7-8The following is the introductory summation from Kaplun: “Petitioner Vadim Kaplun, a citizen of the Ukraine, petitions for review of four decisions of the Board of Immigration Appeals resulting in a final order of removal that [1] designated him removable for having committed an aggravated felony, [2] denied him withholding of removal by virtue of having committed a particularly serious crime, and [3] reviewed de novo and reversed the Immigration Judge’s finding of a clear probability of future torture if Kaplun were removed. He contends that the Government did not prove he committed an aggravated felony by clear and convincing evidence; as a nonviolent, white collar offense, his offense was not a particularly serious crime; and the BIA applied an improper de novo standard of review to the IJ’s finding that Kaplun’s torture if removed would be probable. We conclude that the BIA was correct on the first two issues, but applied an incorrect standard of review on the third. Accordingly, we deny the petition for review on the first two claims, and grant it on the third claim.” [Bracketed numbers and other emphases added.]The 30-page pdf version of the Third Circuit’s April 9, 2010, Kaplun decision islinked above in this essay. The “test” is cited and explained in the Green excerptabove. Incidentally, Green was decided earlier, on July 13, 2012, but waspublished as Precedent on September 12, 2012, upon grant of the Government’sMotion to publish it as a Precedent.As the Third Circuit points out “Kaplun states only that “there are two distinctparts” to the analysis and that “[t]he two parts should be examined separately.” 602F.3d at 271.” (Green, quoting Kaplun). I find that the key issue for this essay isthe concept that there are “...“... distinct parts” to the analysis and that “[t]he [...]parts should be examined separately.””I include this “test” as a simple comparative tool to illustrate the similarities anddifference between multi-part issues across contexts. Especially when dealingwith immigration benefits, the law can be extremely complex, convoluted, andconfusing. It is sometimes the case that the ultimate answer is an “all or nothing”deal. That is, an application or petition for some INA-based benefit request (orrelief from removal) demands a minimum particular showing as a baseline. Othertimes multiple facts or certain reasonable inferences (plural) must be demonstratedin order to either make a prima facie case which will allow one to proceed to the Page 2 of 4
  3. 3. next step; or demonstrate full eligibility and be granted the requested benefit orrelief. To paraphrase the Supreme Court in Bagamasbad (Supra), if there is nopoint in making a finding or saying anything at all, then don’t. As I like to think ofit, the best way to keep from putting your foot in your mouth is to keep your mouthshut.The Supreme Court in Bagamasbad (excerpt below) was overruling the ThirdCircuit as to the necessity to reach the useless, irrelevant, and immaterialconclusions that have no bearing on the decision or any issue in the case at hand. “A divided [Third Circuit] Court of Appeals sitting en banc held that although the immigration judge had properly exercised his discretion to deny respondents application, the statute required the judge to make findings and reach conclusions with respect to respondents eligibility for admission into this country as a permanent resident. 531 F. 2d 111 (CA3 1976). Disagreeing as we do with the Court of Appeals, we grant the petition for certiorari filed by the INS and the motion by respondent to proceed in forma pauperis and reverse the judgment of the Court of Appeals. As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach. Hirabayashi v. United States, 320 U. S. 81, 85 (1943); Silva v. Carter, 326 F. 2d 315 (CA9 1963), cert. denied, 377 U. S. 917 (1964); Goon Wing Wah v. INS, 386 F. 2d 292 (CA1 1967); De Lucia v. INS, 370 F. 2d 305, 308 (CA7 1966), cert. denied, 386 U. S. 912 (1967). Here, it is conceded that respondents application would have been properly denied whether or not she satisfied the statutory eligibility requirements. In these circumstances, absent an express statutory requirement, we see no reason to depart from the general rule and require the immigration judge to arrive at purely advisory findings and conclusions as to statutory eligibility. In arriving at its contrary conclusion, the Court of Appeals relied on a dictum in Jay v.Boyd, 351 U. S. 345 (1956), which involved a similar provision, 8 U.S.C. § 1254 (a), authorizing the Attorney General in his discretion to grant relief from deportation if certain eligibility requirements are met. In the course of affirming the discretionary denial of relief, the Court indicated that the statute entitled the applicant to a ruling on his eligibility. But the statement followed a reference to immigration regulations which then expressly required a determination of eligibility in each case. 351 U. S., at 352-353. These regulations have been superseded, and the regulation applicable to this case has no such requirement. 8 CFR § 242.18 (a) (1976).” At 25-26 Page 3 of 4
  4. 4. The next part of this essay will present the context of evaluating extraordinaryability immigrant visa petitions (USCIS Form I-140) as derived from Kazarian andRijal from the Ninth Circuit. Rijal v. United States Citizenship & ImmigrationServs., 772 F.Supp. 2d 1339 (W.D. Wash. 2011) applied the reasoning fromKazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (March 4, 2010)2 and was itselflater adopted by the Ninth Circuit without changing one word. We now have twoU.S. Circuit Court of Appeals Precedents and the single administrative Precedent,Matter of Price, 20 I. & N. Dec. 953 (Acting Assoc. Comm’r 1994)3 which shouldprobably be distinguished and clarified or modified by a new AAO Precedent ontopic.The petitioning process for this visa application is progressive. That is to say thatthere is a first step requiring one to meet an initial threshold. Alternatively, asdescribed in Kazarian and Rijal, the petition and accompanying evidence mustanswer an antecedent procedural question. The initial evidentiary showing orprima facie case in the process of applying for extraordinary ability immigrant visaclassification may be met in one of three ways. If the initial threshold which is asomewhat simplistic quantitative component is not met then there is no point incontinuing on to the next stage of the more involved qualitative analysis andevaluation.Among the plethora of visa classifications as well as absolute and/or qualifiedentitlements and the various quasi and pure discretionary benefits or forms of reliefavailable under the immigration, nationality, citizenship, and related laws, there areenumerable multi-part and multi-step approaches. I say enumerable because thepossibilities seem to change in the blink of an eye and unexpectedly. Congress isalways considering some new legislation, the Executive Branch Agencies may seta precedent or promulgate a regulation, and last but not least, a Court might rendera decision at any moment that turns our understanding of the whole body of law onits ear.Government Adjudicators as well as advocates for petitioners, applicants,beneficiaries, and sponsors need to be mindful of the correct issues involved in theinstant case. It is far too easy to get confused as to exactly what needs to beproven and when. Things only get more complicated when one starts out with thewrong approach; in an effort to reach the wrong conclusion; and by submittingevidence that is irrelevant, incompetent, and immaterial; in a quest to answer anunasked question, or prove a pointless point. That’s my two-cents, for now.2 See: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf3 See: http://www.justice.gov/eoir/vll/intdec/vol20/3241.pdf Page 4 of 4

×