Immigration” Budiono v. Lynch, 2016 WL 5112030

Once again the 9th Circuit ignores the IJ and BIA and concludes the evidence does not support an order of removal.The panel orders the case reheard for an alien who has been in this country for eight years litigating his removal after not complying with the entrance act for asylum. The dissent writes about safety in this country and alien’s non compliance with the law. Why does the 9th Circuit want these people in this country?

Immigration: Bhatattari v. Lynch, 835 F3d1037(9th Cir. 2016)

Although the Blog no longer tracks immigration cases due to the volume and fact based evidence, occasionally one appeal exemplifies the 9th Circuit. Some judges on the 9th Circuit are so  predictable that their name on the panel  hearing a case on appeal predicts the result. William Fletcher fits that role.  He has never affirmed a death penalty case, always sides with the petitioner in habeas corpus, and allows immigrants with a criminal record to remain in the United States.

Bhatattari is an example.  The IJ and BIA both agreed the Bhaattari request for asylum was littered with inconsistencies in the evidence,  but Fletcher played the defense role. Writing endless pages arguing with the adverse IJ decision, he concluded the lack of “credibility” by the applicant decided by the IJ had not been established based on the documents offered by the applicant.  According to Fletcher, the IJ did not notify applicant  of his right to rebut the reasons for the her decision despite representation by a lawyer who represented the applicant  In other words, the IJ should assist applicant in defending himself.

Aide from the absurdity of this decision, and the unfortunate result of another hearing, Fletcher-who has never tried a case- does not understand that “credibility” is not confined to a cold transcript.  The IJ considers the nature and demeanor of the applicant and whether  or not to believe him.  None of this shows up on the IJ record (or habeas records) that Fletcher and other trial novices on the 9th Circuit  understand. Now the taxpayers will fund another IJ hearing and perhaps another appeal.

Gonzales v. Thomas, 547 U.S. 183 (2007)

Congress has repeatedly attempted to strip jurisdiction of immigration cases from federal courts in general and the 9th Circuit in particular. And, in 2006 the Supreme Court reversed the 9th Circuit (again) in Gonzales v. Thomas, 547 U.S. 183 (2006), writing . . . “a court of appeals is not generally empowered to conduct a [new] inquiry into the matter [deportation] and to reach its own conclusions based on such an inquiry.” In effect, the Court reprimanded the 9th Circuit for substituting its own opinion in lieu of the Immigration Judge (IJ). Here a few more examples of 9th Circuit reversals of Immigration Court judges: July & August 2007: Gomez v. Gonzales, 498 F.3d 1050 (9th Cir.2007): In petitioning for cancellation of removal, petitioner filed an untimely document in support of her petition and, accordingly, the IJ refused to accept it. The 9th Circuit said the IJ did not give a “reasoned decision” for his ruling. How much “reason” is necessary to explain a rule that requires timely filing of a document? Reversed.