Judge Richard Posner of the
Seventh Circuit Court of Appeals, which covers several
midwestern states, is somewhat of a
judicial legend. Apart from writing more books than many people read in a lifetime. He's also had a few
choice words to say about the
Immigration and Naturalization Service.
See Chevron deference for one example. Indeed, on occasion, he's stopped just short of challenging the
INS to a
duel. Here are some
notable quotables from
Judge Posner.
We may seem awfully picky in remanding a case in which the showing of extreme hardship is as marginal as it is here, and awfully unforgiving of the resource constraints that prevent the judicial officers of the immigration service from doing a competent job. But the government has not argued harmless error, and understaffing is not a defense to a violation of principles of administrative law admitted to bind the Immigration and Naturalization Service. (It would be pretty weird if an agency could get a reduced standard of judicial review of its decisions simply by asking Congress for a reduced appropriation!) The richest nation in the world, which happens to be a nation of immigrants, can afford to staff its immigration service.
-Salameda v. INS, 70 F.3d 447, 452 (7th Cir. 1995)
What is remarkable about the Board's order denying that motion is not the decision itself, but the Board's insularity. As we have noted elsewhere, the Board seems unaware of the elementary facts of contemporary history, even those that bear vitally on its mission. When the immigration judge denied Osmani's application for asylum in 1985 and when the Board of Immigration Appeals affirmed that decision in 1989, there was a Yugoslavia, and Macedonia was a part of it; and while there was ethnic unrest in Yugoslavia there was not, so far as we are aware, systematic persecution of ethnic Albanians, who composed (as they do today) a majority of the population of Kosovo, a province of Serbia, the largest state of Yugoslavia. By the time Osmani filed his motion to reopen his deportation proceeding, Yugoslavia had broken apart. It continued to exist, at least nominally, as a union of two states, Serbia (including Kosovo) and Montenegro, but Macedonia had become an independent nation and a three-cornered civil war was raging among Serbia, Croatia, and Bosnia-Herzegovina, the latter two being, like Macedonia, former but not present Yugoslav states. And in Kosovo there was great tension between Serbs and ethnic Albanians.
None of this mosaic, complicated perhaps but familiar to many newspaper readers, is reflected in the Board's opinion refusing to reopen Osmani's deportation. The opinion reads as if the only change from Yugoslavia in 1985 to Yugoslavia in 1993 had been a gradual increase in "enmity" among the various ethnic groups, rather than a splitting apart of the nation amidst civil war. We can disregard the immigration judge's reference to "Masadonians," for his opinion was oral, and the error may be that of the court reporter. But we cannot disregard the remarkable statement in the Board's 1989 opinion that a majority of Yugoslavs are (or rather were then, when Macedonia was still a part of Yugoslavia) Macedonians. The largest ethnic group in Yugoslavia has always been the Serbians.
Surely the Board can do better. Refugees from the Yugoslav civil war are clamoring for asylum in the United States. Is it not time that the members of the Board informed themselves about the world events that precipitate applications for asylum in the United States?
-Osmani v. INS, 14 F.3d 13, 14 (7th Cir. 1994)
If we could be confident that the Board were fully apprised of the situation in Nigeria, little purpose would be served in directing it to consider materials that describe that situation. But nothing in the Board's opinion suggests that the Board is knowledgeable about Nigeria; its mistaking the ending] date of the civil war is not reassuring. Administrative expertise ought not be presumed in the face of evidence that it does not exist.
-Osaghae v. INS, 942 F.2d 1160, 1164 (7th Cir. 1991)
The Board's analysis was woefully inadequate, indicating that it has not taken to heart previous judicial criticisms of its performance in asylum cases. * * * The elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases. We are being blunt, but Holmes once remarked the paradox that it often takes a blunt instrument to penetrate a thick hide.
* * *
The Board ought by this time to realize, moreover, that in the case of countries that are friendly to the United States, such as Latvia, the State Department's natural inclination is to look on the bright side. * * * The country report is evidence and sometimes the only evidence available, but the Board should treat it with a healthy skepticism, rather than, as is its tendency, as Holy Writ.
The Board's worst error, a rather astounding lapse of logic, remains to be mentioned. The Board relied on the 1998 country report to show that the persecution by the Greens that drove Galina and her husband out of Latvia in 1994 is unlikely to recur. But we cannot find anything in the report that bears on that question. No doubt the general situation with regard to respect for human rights is relevant, but the Board mischaracterized the report in saying that it revealed an "improved human rights situation in Latvia." There is nothing about improvement. It does say such things as that there was a free and fair election in 1996, but it does not say that there was not a free and fair election in 1993 or 1994. It says that human rights are generally respected but not that they are more respected than they were when Galina and her husband were being persecuted. If conditions relevant to that persecution are unchanged since 1994, the Board had no basis for concluding that the couple has no well-founded fear of persecution if they are sent back to Latvia.
- Galin v. INS, 213 F.3d 955, 958-959 (7th Cir. 2000)(internal citations omitted)
The Board was also wide of the mark when it pointed out that the motive for Dragos's attempt to flee the country is unclear and hence that it is unclear whether the jailing and arrests and beatings that followed the attempt to escape can be attributed to his religion. If you are beaten as a direct or an indirect consequence of your religion, that is some evidence of religious persecution. But if you are forbidden to practice your religion, that is religious persecution even if you don't react to it by trying to flee the country.
-Bucur et al. v. INS, 109 F.3d 399, 405 (7th Cir. 1997)
The Board conveyed the substance of its decision in one paragraph that explained why the immigration judge was correct in denying Stankovic's applications:
We find that the respondent has failed to establish a valid asylum claim. The respondent's asylum claim is lacking in plausibility. In Matter of Dass, Interim Decision 3122 (BIA 1989), we held that when the basis of an asylum claim becomes less focused on specific events involving the alien personally and instead is more directed to broad allegations regarding general conditions in the alien's country of origin, corroborative background evidence that establishes a plausible context for the persecution claim (or an explanation for the absence of such evidence) may well be essential. The only background evidence that appears in the record is from the Bureau of Democracy, Human Rights and Labor dated May 25, 1994, which examines current country conditions in the former Yugoslavia. The respondent has produced no evidence to substantiate any point of his testimony. There is no evidence that the professor existed or that the respondent was persecuted as a result of his alleged political activities. The respondent had time before the hearing to obtain evidence but failed to do so and has not explained why he could not obtain evidence especially since the professor was apparently such a prominent individual in opposition to the regime.
This paragraph is the real subject of our review, and when we review the Board's disposition of appeals, we give its decision-making great deference. Our standard of review seeks to insure that the Board will consider the issues before it in a rational fashion, and we will affirm its decisions if there is any substantial evidence in the record to support them. The question we must therefore consider is whether the Board's discussion of Stankovic's case reflects a reasoned review of the immigration judge's decision in light of the administrative record.
We cannot conclude that the Board made a rational decision here. As the quoted paragraph demonstrates, the Board certainly asserted reasons for its decision, but its main reasons are irrelevant to the record. For the immigration judge, the dispositive issue was the credibility of Stankovic's testimony about his personal experience in the former Yugoslavia. Indeed, given the evidence before the immigration judge, this was the only issue in the case. But the Board seemed concerned with an entirely different issue, one that could not possibly have been a basis for decision on the record. As the Board understood them, Stankovic's claims focused on general conditions in Serbia and not on his own personal experience. Citing its own opinion in Matter of Dass, the Board pointed out that such claims usually require corroboration from evidence besides the petitioner's own testimony, and it then concluded that Stankovic's claim should fail because he provided no meaningful corroborative evidence. We do not doubt that this reasoning might justify the Board's decision in many cases; but it has no application in this one. The Board's own discussion of the case strongly suggests that it had not read, or was confused about, the record or the immigration judge's decision. It is hard to imagine how a rational decision-maker could have examined the development of this case and then indicated that Stankovic's claim is "less focused on specific events involving the alien personally and instead is more directed to broad allegations regarding general conditions in the alien's country of origin." Stankovic's claim focused only on specific events involving him personally. Therefore, there is no evidence in the record that supports the Board's analysis of the case.
The INS resists this interpretation of the Board's decisionmaking. In its view, the Board's decision expresses agreement with the immigration judge on the question of Stankovic's credibility. The INS believes that the Board cites Matter of Dass to support the proposition that broad, unsubstantiated factual allegations cannot form the basis of a petition for asylum--not for the proposition that allegations related to general country conditions require corroboration. And the INS points to a passage in Matter of Dass which does indeed support this proposition. The INS's reading might be plausible if the Board had only cited Matter of Dass and had not explained the relevance of that opinion; but the Board did explain why it relied on this case, and that reliance had nothing to do with general principles about the importance of corroborative evidence. The Board's own words leave us with the inescapable conclusion that it cited Matter of Dass because it fundamentally misunderstood Stankovic's case and the immigration judge's decision. There may or may not be valid reasons for affirming the judge's dismissal of Stankovic's applications, but the Board has not asserted any.
-Stankovic v. INS, 94 F.3d 1117, 1119-20 (7th Cir. 1996)
This said, we do not condone the INS for its sloppy handling of the record and its ungenerous suggestion that Ortiz's counsel should have listened to the tape and tried to make some sense out of it though the court reporter hired by the government had not been able to do so. It was the government's responsibility to prepare the transcript, so if anyone should have listened to the tape besides the reporter and made a new transcript it should have been the government's lawyer. But the Supreme Court has told us that the power of reversal is not to be used to punish prosecutorial misconduct when there is no indication that it affected the outcome. The principle is equally applicable to deportation.
We said earlier that the Board had affirmed on the basis that the immigration judge had not abused his discretion in denying relief from deportation. Ortiz argues that he was entitled to plenary review by the Board, and he cites cases in which the Board indeed granted the appellant who was challenging denial of section 212(c) relief plenary review of the immigration judge's ruling denying relief. The government ripostes rather astonishingly that the Board has no fixed standard of review--sometimes it reviews the immigration judge for abuse of discretion, sometimes it reviews him de novo.
That won't do. It is an undue hardship to require the alien to guess at the standard of review that will be applied to his appeal, or, if he doesn't want to roll the dice, to argue his appeal in light of all possible standards of review. And it is irresponsible for the Board to fail to define its relationship to the immigration judges. Of course court of appeals judges frequently disagree among themselves about the proper standard for reviewing district judges, but our complaint is not that the Board has had difficulty hammering out a position but that it seems not to have noticed that there is an issue. Obviously it believes that the balancing of equities required by an application for relief under section 212(c) is the sort of judgmental, particularistic issue fairly described as discretionary. The statute says so ("may be admitted in the discretion of the Attorney General," 8 U.S.C. ยง 1182(c)), the Board says so, and the appellate courts say so. The question on which the Board seems not to have made up its mind is whether the immigration judge is a sufficiently responsible officer to justify the Board's in effect delegating the making of the necessary discretionary judgment to him, subject only to the limited review implied by the abuse of discretion standard; or whether the Board should make the discretionary judgment itself, giving no particular weight to the immigration judge's determination. Agencies generally are free to substitute their judgment for that of their hearing officers, though there are exceptions, not limited to the case stressed in Universal Camera (and applicable to some cases of review by the Board as well, where the hearing officer has made determinations about the credibility of witnesses. All we ask is that the Board of Immigration Appeals indicate what standard of review it means to use in these cases. The government's lawyer stated, incoherently, that if the Board agrees with the immigration judge, it applies the abuse of discretion standard; if it does not, it reviews him de novo. But if the Board poses the question as whether it agrees with the immigration judge, then it is reviewing him de novo. To agree is to make an independent judgment that coincides with that of the person with whom one agrees. To review for abuse of discretion is to uphold determinations with which the reviewing court may very well disagree.
It is high time that the Board of Immigration Appeals examined its relationship to the immigration judges. But, to repeat an earlier point, we cannot reverse because of an error that makes no difference to the outcome of the case that is before us. While purporting to review the immigration judge merely for an abuse of discretion, the Board made more than clear that it thought that Ortiz should be deported. It agreed with everything the immigration judge had said against relief from deportation and added that if it had been making its own determination it would not have credited Ortiz with his years of illegal residence, thus knocking out his principal equity, since his seven years of legal residence (prior to his imprisonment) seem to have been given over, to a significant extent, to illegal trafficking in drugs. The Board of Immigration Appeals has not covered itself with glory in this proceeding but it committed no reversible error and its order denying Ortiz relief under section 212(c) of the Immigration and Nationality Act must therefore be affirmed.
-Ortiz-Salas v. INS, 992 F.2d 105, 107 (7th Cir. 1993)