In Berishaj v. Ashcroft, No. 03-1338 (3rd Cir. Aug. 5, 2004), the 3rd
Circuit makes a number of critical points which echo themes Immigration
Daily (and practically no one else) has sounded before. The particular
problem that concerned the court in this case was the out-of-date
documentation in the record for the asylum petition:
"Considering the rapid, frequent political changes in countries from which
asylum and CAT applicants usually come, and the potentially dire
consequences of sending such an applicant back to his country of origin to
face possible persecution or torture on the basis of such a stale report,
we call on Congress, the Department of Justice, the Department of Homeland
Security, and the BIA to improve the structure and operation of the system,
so that all may have the confidence that the ultimate disposition of a
removal case bears a meaningful connection to the merits of the petitioner’s claim(s) in light of contemporary world affairs."
As to why the current system produces out-of-date records, the 3rd Circuit
hit the nail on the head: the Affirmance Without Opinion (AWO) procedure at
the BIA a.k.a. the streamlining regulation. While the circuit courts have
found this procedure to be legal, Immigration Daily has pointed out
numerous times that it overburdens the Circuit Courts and jeopardizes their
functioning. Without calling for wholesale rejection of the AWO procedure,
the 3rd Circuit does ask the BIA to act:
"The trigger for the recent spate of out-of-date records is, we suspect,
the streamlining regulations noted above, which permit the BIA to summarily
affirm an IJ’s decision without issuing its own opinion. See 8 C.F.R. §
3.1(e)(4). The natural—though surely unintended—consequence of the
streamlining regulations is summary affirmance by the BIA of stale,
backlogged decisions by IJs. When it does so, the BIA may have shirked its
role and duty of ensuring that the final agency determination in an
immigration case is reasonably sound and reasonably current. ... The
streamlining regulations exist to save an overburdened BIA from unnecessary
and redundant tasks. They are not a license for the BIA to say “not our
problem.” Outdated administrative records are the BIA’s problem, at least
as things now stand, and the BIA needs to confront them. We therefore call
on the BIA to adopt—by opinion, regulation, or otherwise—policies that will
avoid the Court of Appeals having to review administrative records so
out-of-date as to verge on meaningless."
The real issue is that summary removal is not in keeping with our country's
tradition of due process, and due process necessarily means an expensive
and lengthy proceeding which will usually be of great advantage to aliens.
The answer to the massive volume of cases flooding the immigration courts
is to open up massive avenues of legal immigration - attempts at massive
deportation will succeed only in destroying the foundations of our own
government. The fundamental problem at this level of policy is always the
procedure, here is what the 3rd Circuit says, quite rightly, it should not
do (and what the pre-AWO BIA would have done).
"we will not scour a 700-plus page record (well over half of which is
devoted to documentary materials) for evidence unnoticed and unanalyzed by
the IJ to uphold the IJ’s decision."
Bear in mind that the 3rd Circuit is hardly acting here in the alien's
interests. Recognizing that "in the majority, country conditions had
improved, weaking the alien's case for relief" the court says "we encourage
the Department of Justice to adopt a policy that encourages its attorneys
to file motions to reopen when the adjudication of an applicant’s claim
would benefit from an updated administrative record."
The bottom line is that the "deport-'em-all" mentality that dominates in
the post-9/11 DOJ/DHS appears to believe that there is no baby in the bath
water to be thrown out. Immigration is good for America, and so is due
process, and so of course is security. There will not be any due process
conflict with large-scale, secure, channels of legal immigration. It is
only when anti-immigrationists seek to artificially restrict natural
immigration that these due process conflicts arise. Those who fear what
large scale immigration can do to America have as little confidence in our
country as the America-hating multi-culturalists do. The USA deserves
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The Endless Wait: Will Resources Match The Resolve To Reduce The Immigration Case Backlog?
The Immigration Policy Center of the American Immigration Law Foundation writes "Congress and the White House have pledged for a decade to reduce the backlog of immigration cases, but without providing the resources necessary to do the job."
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Immigration Law News
Government Has Burden Of Showing Changed Country Conditions
In Berishaj v. Ashcroft, No. 03-1338 (3rd Cir. Aug. 5, 2004), the court said that the IJ's opinion in this asylum matter was cursory, thinly reasoned and discussed the case without any reference to the governing legal standards. The court also said that the comments of the IJ were not tethered to the record, owing what little support they had to hyperbole and appeals to popular culture, which the court characterized as two utterly bases for an asylum decision.
DOS Cable On Prospective Students Entering On B Visas
The Department of State issued a cable correcting previous guidance on prospective students entering on a B visa.
AILA Executive Director On CNN's Lou Dobbs Tonight
A transcript of CNN's "Lou Dobbs Tonight" reports AILA's Executive Director Jeanne Butterfield as saying, "But what I'm saying, Lou, is our borders are our last line of defense. Lets make sure that we work with Canada and Mexico, to make sure that they're doing the proper screening, so that bad guys don't even get there, let alone get to the Rio Grande."
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Letters to the Editor
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There is a lot of debate recently to not only halt illegal immigration but to possibly do the same with legal immigration. I support a permanent bar to any amnesty that rewards illegal immigration and a very thorough screening of all legal immigrants. I know Chucky's ambitious proposal to ban the H-1B visa is unlikely to pass but it should help put some pressure on Congress to not raise the H-1B cap when there is no justification.
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