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< Back to current issue of Immigration Daily

An Interesting Turn of Phrase in Seventh Circuit

by Joseph P. Whalen

In a non-precedential disposition[1] issued on February 15th, 2012, a three-judge panel consisting of Frank H. Easterbrook, Chief Judge, William J. Bauer, Circuit Judge, and Edmond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 hope someone out there can also find some value in this discussion

In Thelma Young v. Eric Holder, Jr., No. 11-2672 (7th Cir. 2-15-2012), the panel stated:

"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 entitlements[2]." At p. 2 [Bold emphasis added.]

This made me want to look up Portillo-Rendon but first I wanted to check the definitions of the words used above just to make sure I was understanding it correctly. Here goes.

Deprecate, deprecating: includes: "to seek to avert" and "to express disapproval of". I think either of those will fit what the Court was conveying.

Ambulatory: includes: "capable of being altered" a will is ambulatory until the testator's 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" or lastly "passing, or in passing".

Invocations: (from the Latin verb invocare "to call on, invoke, to give") may take the 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 the judges if I am guessing wrong, it will be my own mistake.

So, by the phrase "deprecating ambulatory invocations of due process" were the judges saying that the cited case was "expressing disapproval" and "seeking to avert" the "passing" attempts to "conjure up" some "due process" "rights" where none exist but if they did, they were "violated"-type of arguments? Perhaps and probably so. Now, I think it would be good to take a look at Portillo-Rendon and see 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 agency's 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-Rendon's 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, the Portillo-Rendon Court also emphasized that an "entitlement" must underlie one's due process arguments in these types of cases (BIA challenges).

The Court continued in a somewhat irate tone (to Counsel rather than the actual petitioner):

"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 won't."

I am an advocate for arriving at the fair and correct decision in Immigration and Nationality cases. I harangue USCIS adjudicators, the BIA, AAO, and lately DOJ Office 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 refrain from ridiculous and frivolous arguments; it hurts their clients and themselves. That's my two-cent, for the moment.


footnotes


1 http://www.ca7.uscourts.gov/tmp/FT1BF8RQ.pdf
2 I have previously espoused my views on entitlements under the INA. See: Administrative VS. Judicial Remedial Powers 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


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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