Parlak v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0425p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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IBRAHIM PARLAK,

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Petitioner,

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No. 05-4488

v.

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ERIC H. HOLDER, JR.,

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Respondent.

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Filed: November 24, 2009

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

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ORDER

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The court having received a petition for rehearing en banc, and the petition having

been circulated not only to the original panel members but also to all other active judges of

this court, and less than a majority of the judges having favored the suggestion, the petition

for rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the

issues raised in the petition were fully considered upon the original submission and decision

of the case. Accordingly, the petition is denied. Judge Martin would grant rehearing for the

reasons stated in his dissent.

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This order was originally issued as an “unpublished order” filed on November 24, 2009. It is

now designated for full-text publication and incorporates Judge Martin’s dissent.

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BOYCE F. MARTIN, JR., Circuit Judge, dissenting from denial of rehearing en

banc. From 1994 until the government initiated deportation proceedings, Ibrahim Parlak

operated a restaurant and raised his family in a small town in Michigan. There is no

indication that he ever caused any problems here in the States. Why our government would

elect to expend the time and money to rid our population of someone like Mr. Parlak is

beyond me. As I acknowledged in my dissent to the panel opinion, however, “for the

nation’s immigrants, past may always be prologue,” Parlak v. Holder, 578 F.3d 457, 471

(6th Cir. 2009) (Martin, J., dissenting), and, in any event, it is the government’s prerogative

to fritter away our resources as it sees fit. But one would assume that, if the government is

going to expel a beneficial member of society for the alleged sins of his distant past, the

government would go about its chosen folly correctly, in an above-board and dignified

manner, and without over-reaching. One would further assume that those of us in the

position of deciding Mr. Parlak’s case, in the agency and in the judiciary, would demand this

high standard of the government.

One would be wrong. In the hearing before the Immigration Judge, the government

relied heavily upon evidence that no one genuinely disagrees was obtained by torture

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twenty-one years ago in a Turkish prison. Then, in a heartwarming display of

adjudicative neutrality, the Immigration Judge issued an opinion that did little more than

cut and paste from the government’s briefs, typographical errors and torture-induced

admissions included. Adding insult to injury, the Immigration Judge demonstrated either

unprecedented gumption or an unfortunate insensitivity to irony in determining that Mr.

Parlak lacked credibility based on his demeanor on the stand while at the same time

giving credence to evidence obtained by torture—it is worth mentioning again—in a

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Seriously, a Turkish prison.

No. 05-4488 Parlak v. Holder Page 3

Turkish prison.2 Given this rather inauspicious start to Mr. Parlak’s journey through our

immigration system, one would assume that things would be righted at the next stop.

One would, again, be wrong. Having lost before the Immigration Judge, Mr.

Parlak’s next stop was the Board of Immigration Appeals. To its credit, the Board did

not repeat the Immigration Judge’s error with regard to the torture-induced evidence.

Indeed, the Board’s decision purports to disregard those portions of the Immigration

Judge’s opinion that rely on this evidence, though I have my doubts about the Board’s

ability to do this in practice. But, while it tried to repair the damage caused by the

Immigration Judge, the Board caused even more harm on its way to affirming the

judgment of the Immigration Judge.

A major issue before the Board was whether Mr. Parlak was eligible for

withholding from removal—meaning that he could not be deported—or whether he was

ineligible for withholding—meaning that he could be deported—due to the so-called

“persecutor bar.” The “persecutor bar” renders an immigrant deportable if, in the past,

the immigrant “ordered, incited, assisted, or otherwise participated in the persecution of

any person on account of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(B), 1158(b)(2)(A)(i),

1231(b)(3)(B)(i). Both the plain language of the statute and settled precedent from the

circuits recognize that operation of the “persecutor bar” requires a direct nexus between

the immigrant’s actions and the persecution of another as well as an intent to persecute

or knowledge that persecution was occurring. E.g. Diaz-Zanatta v. Holder, 558 F.3d

450, 455 (6th Cir. 2009) (citing Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir. 2005),

and Castaneda-Castillo v. Gonzales, 488 F.3d 17, 20 (1st Cir. 2007)); Balachova v.

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For a more detailed description of the two-ring (one for the Immigration Judge and one for the

government) circus that occurred in the first round of removal proceedings, see Judge Cohn’s excellent

opinion in Parlak v. Baker, 374 F. Supp. 2d 551 (E.D. Mich. 2005). In that case, Mr. Parlak sought habeas

relief from his detention pending the completion of removal proceedings. Judge Cohn aptly describes the

government’s “piling on of removability charges” against Mr. Parlak. He further recounts how the

Immigration Judge ordered that Mr. Parlak be detained on suspicions that he engaged in terrorist activity

even though he had not been accused of engaging in any terrorist activity. I agree with Judge Cohn’s

observation that “once Petitioner was labeled a terrorist, the proceedings took on a decidedly more

complex, if not high-profile, aura.” Id. at 560. I take some solace in the fact that at least Judge Cohn did

something right by Mr. Parlak when he ordered that Mr. Parlak be released during the pendency of his

removal proceedings.

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Mukasey, 547 F.3d 374, 384 (2d Cir. 2008). However, instead of employing this

relatively uncomplicated inquiry to determine whether the evidence against Mr. Parlak

triggered the “persecutor bar,” the Board employed its own misguided inquiry to

determine whether Mr. Parlak’s actions of long ago “further[ed] persecution in some

way.” Finding that Mr. Parlak’s actions did, indeed, further persecution in some way,

the Board found that he was ineligible for withholding from removal. My colleagues on

the panel describe this inquiry as “vague and unhelpful.” Parlak, 578 F.3d at 469. I

would describe it as grossly over-inclusive and as having sprung, unwanted and

uncontrollable, from the collective mind of the Board like Athena from the head of Zeus,

except without Athena’s wisdom and elegance. But semantics aside, we all agree that

the Board’s inquiry was incorrect. One would assume that, in the face of a

fundamentally flawed proceeding in front of the Immigration Judge and an incorrect

analysis by the Board, the next body to examine this case would send Mr. Parlak’s case

back to start afresh.

One would, for a third time, be wrong. Mr. Parlak appealed the Board’s decision

to our Court. I believe that my colleagues on the panel recognized that the case came

before us suffering from numerous procedural infirmities, and the majority’s opinion

shows that they tried mightily to inject some semblance of reason into the decisions of

the Immigration Judge and the Board. Although I applaud their effort, I disagree with

many of their legal conclusions. I set forth my disagreement in detail in my dissent to

the panel opinion, Parlak, 578 F.3d at 471-81, so I do not reproduce it here.

But my larger question, and the first of two main reasons I believe this case

should have been reheard en banc, is why the majority felt compelled to undertake this

effort at all. The Board indisputably used the wrong standard in analyzing Parlak’s case.

In this situation, the Supreme Court instructs us to remand the case so that it may be

analyzed in the first instance under the correct law. Negusie v. Holder, __ U.S. __, 129

S. Ct. 1159, 1167 (2009). And, before this case, it was the settled practice of our Court

to remand when the Board or Immigration Judge apply the incorrect law. See, e.g.,

Callin v. Holder, 333 F. App’x 926, 927 (6th Cir. 2009) (“Because we conclude that the

No. 05-4488 Parlak v. Holder Page 5

BIA applied the wrong legal standard in reviewing Callin’s claim that she did not receive

the notice of removal proceedings, we reverse and remand to the BIA for review of this

claim under the applicable statute, and to allow Callin’s presentation of evidence.”);

Tran v. Gonzales, 447 F.3d 937, 944 (6th Cir. 2006).

Remanding in situations such as this serves two basic functions, one practical and

one pedagogical. Practically, we remand because our question on review is whether

“substantial evidence” supports the Immigration Judge’s or the Board’s legal

conclusions as to deportation. How can we tell if substantial evidence supports another

adjudicator’s legal conclusions if the adjudicator employed the wrong legal analysis?

Pedagogically, we remand to remind all involved that the proceedings in front of the

Immigration Judge and the Board are not mere formalities on the way to an ultimate

decision by the courts of appeals, but instead must be carried out in accordance with the

law. Instead of remanding, however, the majority undertook what should have been the

work of the Immigration Judge and the Board on remand by conducting a de facto de

novo review of Mr. Parlak’s claims. This undertaking directly contradicts instructions

from the Supreme Court, as well as the binding precedent and common practice of this

Court. Thus, this case should have been reviewed en banc.

This leads into the second reason that I believe the en banc Court should have

taken this case. As it stands, the majority’s attempt to clear away the problems caused

by the Immigration Judge and the Board is likely the final word on Mr. Parlak’s removal.

But the majority’s opinion did not fix the problems; it compounded them. On behalf of

our Court, the opinion offers a tip of the hat to the highly questionable result without so

much as a wag of the finger3 at the unquestionably flawed process, leaving me to wonder

why we even maintain the pretense of procedure.

As I stated a few years ago, our recent immigration practice has effectively

changed Emma Lazarus’s beautiful words at the base of the Statue of Liberty from a

solicitation seeking the tired, poor, huddled masses of the world into the exhortation

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With a tip of the hat to M. Colbert of The Colbert Report.

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“don’t let the door hit you on the way out.” N’Diom v. Gonzales, 442 F.3d 494, 500 (6th

Cir. 2006) (Martin, J., concurring). If this is what the law dictates, then we judges may

not stand in the way. But our Court would have done well to convene to let it be known

that, though we will not interfere with the deliberative execution of the immigration

laws, we will not be accomplices in the government’s unprincipled slamming of doors

on those “tempest-tost” who, like Mr. Parlak, seek nothing more than to “breathe free.”

Id. (reproducing Lazarus’s The New Colossus).

I respectfully dissent from the denial of rehearing en banc.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

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Clerk