noting that “[t]here is no indication in the record before us that the Immigration Judge or the Board took cognizance of the dire human rights situation in Mauritania” and commenting that the BIA should explain its reasoning if it finds the “country reports that explain torture, slavery, and other human rights violations” to be “unimportant or irrelevant to the case”
How later courts described this case
- noting that “[t]here is no indication in the record before us that the Immigration Judge or the Board took cognizance of the dire human rights situation in Mauritania” and commenting that the BIA should explain its reasoning if it finds the “country reports that explain torture, slavery, and other human rights violations” to be “unimportant or irrelevant to the case”
- “Administrative review requires a hard look at all of the factors taken together . . . .”
- remanding where the BIA did “not sufficiently articulate its reasoning” for upholding IJ’s asylum denial
- “The least we can ask of the immigration court is to provide a thorough and complete analysis for its determination beyond identifying minor inconsistencies, cultural differences, or language barriers.”
Written by the judges who cited it.
The opinion
BOYCE F. MARTIN, Jr., Circuit Judge,
concurring.
At the base of the Statue of Liberty, a wonderful poem by Emma Lazarus is engraved on a tablet. It is called The New Colossus and is worth repeating:
Not like the brazen giant of Greek fame, with conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand a mighty woman with a torch, whose flame is the imprisoned lightning, and her name Mother of Exiles. From her beacon-hand Glows world-wide welcome; her mild eyes command The air-bridged harbor that twin cities frame, “Keep, ancient lands, your storied pomp!” cries she with silent lips. “Give me your tired, your poor, Your huddled masses yearning to breathe free, The ivretched refuse of your teeming shore, Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”
We have come a long way from these sentiments. Instead, in the halls of our immigration courts today, the sentiments all too often are more like “don’t let the door hit you on your way out.”
There are no doubt many conscientious, dedicated, and thorough immigration courts across the country. Unfortunately, their hard work is overshadowed by the significantly increasing rate at which adjudication lacking in reason, logic, and effort from other immigration courts is reaching the federal circuits. See e.g., Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir.2005) (“This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation’s immigration policies or to a misconception of the *501 proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.”); Rexha v. Gonzales, 2006 WL 229796 , *5 n. 3 (6th Cir.2006) (noting that “horror stories persist of nasty, arrogant, and condescending immigration courts”); Metko v. Gonzales, 159 Fed.Appx. 666 (6th Cir.2005) (Martin, J., concurring) (“Although I am sympathetic with the difficulties faced by immigration courts and its caseload, it should be responsible for providing a complete and accurate determination on asylum claims. Let us not forget the impact of these hearings on the lives of the individuals involved. The least we can ask of the immigration court is to provide a thorough and complete analysis for its determination beyond identifying minor inconsistencies, cultural differences, or language barriers.”); Mece v. Gonzales, 415 F.3d 562, 572 (6th Cir.2005) (“The Board’s failure to find clear error in the immigration judge’s adverse credibility determination leaves us, we are frank to say, more than a little puzzled.”); Adam Liptak, Courts Criticize Judges’ Handling of Asylum Cases, N.Y. TIMES, Dec. 26, 2005, at A1. 1
The problem lies not only with the administrative courts, however, but also with the petitioners’ own counsel. This case demonstrates as much. Ineffective assistance of counsel — or in immigration proceedings, due process of law — gets much more attention in criminal cases. But, the inadequacy and carelessness of some counsel has allowed or facilitated some of the problems in the immigration courts. Likewise, reviewing courts have been, in my opinion, unduly tolerant of ineffective counsel. Unfortunately, the realities of the situation prevent certain checks on counsel in immigration proceedings. It is quite difficult for a deported petitioner to sue his attorney for malpractice or to file complaints with the immigration courts. And, asylum seekers are politically powerless, voiceless, and often at the mercy of counsel and the courts. The issue, therefore, requires some self-policing. The immigration bar would be well served by strongly considering whether to promulgate certain standards of conduct — i.e., ABA-like Guidelines for the Performance of Counsel in Immigration Proceedings— that could assist counsel in representing immigration clients and also help the courts in evaluating counsel’s performance. Although the immigration courts themselves have serious problems, it would be a disservice to claim that the problem lies only with the immigration courts.
Fortunately, with regard to administrative reform, the Attorney General of the United States recently acknowledged the problem in the immigration courts when he issued a memorandum to immigration judges and to the members of the Board of Immigration Appeals and also ordered the Deputy Attorney General and Associate Attorney General “to develop a comprehensive review of the immigration courts.” The Attorney General’s memorandum acknowledges that “there are some [immigration courts] whose conduct can aptly be described as intemperate or even abusive *502 and whose work must improve.” Whatever the impetus, see Benslimane, 430 F.3d at 830 (“All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation’s immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals”), the Attorney General’s reminder to those courts is a much needed one. To his credit, the Attorney General stated: “I urge you always to bear in mind the significance of your cases and the lives they affect. To the aliens who stand before you, you are the face of American justice. Not all will be entitled to the relief they seek. But I insist that each be treated with courtesy and respect. Anything less would demean the office that you hold and the Department in which you serve.” This is a step in the right direction. A nation so concerned with freedom and liberty ought to accord a little more respect and dignity to those who seek from us that which we claim to be so proud to offer.
With these observations, I concur.
. See also Lisa Getter & Jonathan Peterson, Speedier Rate of Deportation Rulings Assailed, L.A. TIMES, Jan. 5, 2003, available at 2003 WL 24211941 . The article discusses the speedy rate at which the Board of Immigration Appeals decides cases and describes how two Board members each decided more than fifty cases on one day. The means that if the Board members worked a 9 hour day without any breaks for the restroom, lunch, or otherwise, each case received approximately ten minutes of attention despite the fact that ordinarily, immigration cases produce records in the hundreds of pages, and that many of those seeking relief allege that they will be tortured or killed if deported.