What a difference a panel makes.

Sunday, December 5th, 2010
By: Jonathan MontagJ.D.

People who study tests, whether they are good tests are not, use the concept of “reliability.” A reliable test is one that measures the knowledge of material consistently across time, individuals, and situations. So for example, if you give a history test on Monday and 20 percent get A’s and 20 percent get F’s, and then you re-test the next Monday and a different 20 percent get A’s and F’s, the test is not reliable.

In the immigration context, people often appear before an immigration judge to seek relief from being deported. Practitioners often come away from court thinking things like, “If I only had had a different judge, my client would have won,” or, “If I had had any other judge, I would have lost.” This is a good example how concerns about reliability make themselves felt every day.

In appellate law, reliability is observed routinely. We read all the time about the balance in the Supreme Court; how Justice Anthony Kennedy is the swing vote and otherwise the justices are split to the left and right 4 to 4. If any of the 4 on the right side or Justice Kennedy should retire, the current President could change expected outcomes for many types of cases by choosing a more left-oriented justice. For this reason, we all understand that the Supreme Court is unreliable over time.

At the Court of Appeals level, cases are most often heard by three-judge panels. Often, you can predict the outcome of the case by seeing who is on your panel. It is so important a determinant that the courts of appeal, at least the 9th Circuit, do not announce who the panel deciding a case is until the week before oral argument on a case. It could be that there are good logistical reasons for this, but it is also likely that there is concern that knowing the panel in advance could influence tactics by the litigators. If, for example, you know your panel is likely to deny your case, you might just withdraw it if withdrawal has certain advantages to your client or if the case represents a larger concern and you don’t want to ruin it for everyone.

Two cases this week from appellate courts point this out. In the Ninth Circuit, the court reversed a denial in an asylum case, Javhlan v. Holder. In a dissent by Judge Sandra S. Ikuta, she asserted that the court was taking over the immigration judge’s job in combing through the record to find reasons to reverse the immigration judge, whose fact findings should be reversed only if the court was compelled to conclude to the contrary. It is not hard to imagine that if one of many other judges had been assigned to the panel in Javhlan, the result would have been different, like this one (Judge Kozinski) or this one (Judge Bea).  Thus, the outcome was not reliable. A drawback to unreliability, in addition to the fact that it seems unfair, is that it leads to uncertainty for litigants. Addressing specifically the asylum context, as long as the results from the courts of appeals are unreliable, aliens will continue to appeal their cases to them hoping for a win and immigration judges and the BIA cases will continue to deny cases that have a lot of merit but are not in the “clearly approvable” range.

The other case is Samirah v. Holder, which I have been writing about quite a bit lately, here and here.  The 7th Circuit issued its decision on December 3, 2010. The court ordered that Mr. Samirah be allowed back into the United States to be allowed to pursue his adjustment of status application. Just to briefly summarize the issue – Mr. Samirah applied for adjustment of status. He applied for and received an “advance parole” document which was supposed to allow him to travel outside of and return to the United States when ordinarily a person who departs the United States abandons the application and cannot come back in unless he or she has some other means. Mr. Samirah had no other means. Customs and Border Protection revoked Mr. Samirah’s advance parole while he was outside the United States and then said that without it, he could not return. He sued to compel the United States to allow him back into the country to pursue his adjustment of status. The 7th Circuit Court of Appeals ordered that he be allowed back to pursue his adjustment of status.

Essentially, Judge Posner said that Mr. Samirah was given a document that said he could come back to the United States to fight his case. Based on that promise, he left. Taking away the document was a breach of the promise which he relied on. The regulations call for him to be restored back to his prior status, which Judge Posner found was to be allowed back as an adjustment of status applicant. Here is how Judge Posner put it:

The government’s insistence that a grant of advance parole creates no right of reentry to the United States (or if it does create such a right, no remedy for its violation) comes close to nullifying advance parole; for what applicant for adjustment of status (and thus not yet a lawful resident) would take a chance on leaving the country if he can be denied reentry on an immigration officer’s whim? The Attorney General can abolish advance parole if he wants, but he cannot be permitted to make it a trap—a device for luring a nonlawful resident out of the United States so that he can be permanently excluded from this country without any of the procedural protections that he would enjoy if, remaining in the United States, he could be removed only in a removal proceeding.

There was a dissent in the case by Judge Daniel Manion. In a nutshell, he argued that the case was already decided against Mr. Samirah years earlier in a 2003 in Samirah v. O’Connell. Second, instead of looking at advance parole as a benefit promised to Mr. Samirah, advance parole is an option to parole an alien into the United States issued in advance of his or her departure which is executable at the option of the government if all of the alien’s ducks are in order when the alien returns from foreign travel. In this case, the ducks were not in order and Customs and Border Protection had the right to cancel the option. Third, the regulation, 8 CFR 212.5(e)(2)(i), calls for someone with a revoked parole to be “restored to the status he or she had at the time of parole.” Because Mr. Samirah had no status in the United States – whatever lawful stay he had was long-expired – he hd no lawful status to return to.

The case is important because it deals with many important issues that are poorly defined in the statutes and regulations. Chiefly, what is advance parole and what is status? According to Judge Posner, advance parole is a tangible promise of return. According to Judge Manion it is the right given in advance to come to the border to seek parole and be allowed to continue with an adjustment of status application, if otherwise warranted. As for status, for Judge Posner, it is whatever right you have that bars you from being shoved on an airplane and out of the country without the benefit of any review administratively or judicially. For Judge Manion, it is a lawful immigrant or nonimmigrant status.

Practitioners are familiar with these issues. Unfortunately, the nuances remain unresolved. Regarding advance parole and whether being inadmissible hinders the ability to return, the case shines little light. Judge Posner notes in Samirah that a person can be denied entry if he or she is inadmissible, even with an advance parole. Mr. Samirah was not determined to be inadmissible, Judge Posner notes. He also pointed out that the Advance Parole document, Form I-512, indicates that being inadmissible under INA § 212(a)(9)(B)(i)  is a ground for denying entry and that the government did not allege inadmissibility under this section. Judge Posner inaccurately indicates that INA § 212(a)(9)(B)(i) applies to people who have been previously removed from the United States. This is not true – 212(a)(9)(A) does and 212(a)(9)(C) sometimes does, but not 212(a)(9)(B). While the facts are not clear on the issue, it seems that Mr. Samirah would indeed have been subject to the 212(a)(9)(B) bar – which makes inadmissible a person who has been in the United States illegally for more than 180 days and then departs the United States. Had CBP or some other Department of Homeland Security bureau charged Mr. Samirah with inadmissibility under 212(a)(9)(B), would his parole have been properly denied (or advance parole properly revoked, depending on how you look at it) and his entry properly barred?

According to Judge Posner, a determination of inadmissibility would have had to have been made by an immigration judge. (“… he could not be denied admission without a determination by an immigration judge that he was inadmissible.”) (Does he really mean admitted or does he mean paroled?) Judge Posner derives this from 8 CFR 1.1(q), which states, “… an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act (which authorizes removing an alien without seeing an immigration judge or any other judge).” Only arriving aliens can be excluded from the United States without seeing an immigration judge. Of course, this syllogism only works if you agree with Judge Posner that the advance parole cannot be revoked. Judge Manion did not believe it and neither did the Ninth Circuit in Hassan v. Chertoff. So, at this point, if an alien travels abroad with an advance parole document and is subject to a 212(a)(9)(B) bar, will he see an immigration judge or not? Apparently in the Seventh Circuit he can, but in Ninth Circuit he cannot. Do you think CBP officers at O’Hare have received instructions about this? Me neither.

Further, regarding what status is, according to Judge Posner, Mr. Samirah had to be returned to his prior status as a person with an adjustment pending. This view of status comports with what many, perhaps most, immigration attorneys understand. Your client is out of status and you rush to file an adjustment of status application which gives him the opportunity to apply for permission to work and the ability to pursue the application with an immigration judge should the application be denied. Or your client is already in a lawful nonimmigrant status and he or she then applies for permanent residence which keeps the client “legal” with the ability to apply for permission to work and to travel abroad (with advance parole!). However, ICE sees it differently. A person who is not in lawful nonimmigrant status but has an adjustment application pending is subject to arrest and detention. When ICE announced this policy during the height of its post-9-11 get-tough frenzy, business immigration attorneys were concerned that their business executives awaiting adjustment of status could be arrested on their way to work because they were not “in status.” Fortunately, America was not at war with Japanese, South Korean, British, or Chinese (yet) businessmen, so fears of arresting adjusting executives did not occur. America has been at war with Islam  and so weird things like this happen – to Mr. Samirah, Mr. Hassan, and many others. So would a business executive in Chicago, the Seventh Circuit, be subject to arrest for being out of status when his only “status” is an adjustment of status application pending? I would venture that Samirah is persuasive that he should not be. I would venture that in the Ninth Circuit, because of Hassan, he still would be. I doubt, however, ICE and CBP have given this much recent thought.

Because of the differences of opinion within the Seventh Circuit and between the Seventh and Ninth Circuits, we can conclude that the results in Samirah and Hassan are not reliable. The law is unclear as to what advance parole is and what status is. These are important concepts in immigration law. So is what an appellate court can review in an asylum case. That is why practicing immigration law is like standing on a surfboard rather than on a pedestal – there is little agreement on anything – even the basics.



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