3d Cir. Rebukes BIA for Troubling, Erroneous Overreach

Alimbaev v. Att’y Gen. of U.S., No. 16-4313 (3d Cir. Sept. 25, 2017) opens with unusual language: “This disconcerting case, before our court for the second time, has a lengthy procedural history marked by confiict between the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ)...”  The court observed that the case involved “troubling allegations that the Petitioner...relished watching terroristic videos, while apparently harboring anti-American sympathies.”  But the court noted that the question before it was whether the BIA applied the correct legal standard for reviewing the IJ’s factual findings, which the court found necessary for “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.”

There is some history behind the correct legal standard mentioned by the circuit court. Prior to 2002, the BIA could review factual findings de novo, meaning it could substitute its own judgment as to whether the respondent was truthful or not for that of the immigration judge.  In 2002, then attorney general John Ashcroft enacted procedural reforms which limited the scope of the Board’s review of factual findings to “clear error.”  The new review standard meant that even if the Board strongly disagreed with the immigration judge’s fact finding, it could only reverse if it was left with the definite and firm conviction that a mistake had been made. The stated reason for the change was that the overwhelming majority of immigration decisions were correct.  The actual motive for the change was more likely that the Board was seen as too liberal by Ashcroft; the new standard would therefore make it more difficult for the Board to reverse deportation orders based on the immigration judges’ finding that the respondent lacked credibility.

The following year, Ashcroft purged the Board of all of its more liberal members.  The resulting conservative lean has not been offset by subsequent appointments, in spite of the fact that several of those appointments were made under the Obama administration.  The Board regularly uses boilerplate language to affirm adverse credibility findings on the grounds that they do not meet the “clearly erroneous” standard.  Furthermore, 2005 legislation provided immigration judges with a broader range of bases for credibility determinations, which again made it more difficult for the Board and the circuit courts to reverse on credibility grounds.

The provisions safeguarding an IJ’s credibility finding should apply equally to cases in which relief was granted, making it  difficult for a conservative panel of the Board to reverse a grant of relief where the IJ found the respondent credible.  Alimbaev was decided by an outstanding immigration judge, who rendered a fair, detailed, thoughtfully considered decision.  Factoring in the REAL ID Act standards and the limited scope of review allowed, the Board should have affirmed the IJ’s decision, even if its members would have reached a different factual finding themselves.  Instead, the Board panel ignored all of the above to wrongly reverse the IJ not once but three times.

The immigration judge heard the case twice, granting the respondent’s applications for relief each time.  In his second decision, the IJ found the respondent’s testimony to be “candid, internally consistent, generally believable, and sufficiently detailed.”  In reversing, the BIA turned to nitpicking, citing two small inconsistencies that the Third Circuit termed so “insignificant...that they would probably not, standing alone, justify an IJ making a general adverse credibility finding, much less justify the BIA in rejecting a positive credibility finding under a clear error standard.”  The Court therefore concluded that the BIA substituted its own view for the permissible view of the IJ, which is exactly what the “clear error” standard of review is meant to prevent.

The Board cited two other dubious reasons for reversing.  One, which the circuit court described as “also troubling,” involved a false insinuation by the Board that a computer containing evidence corroborating the claim that the respondent had viewed “terrorist activity” was found in his residence.  In fact, the evidence established that the computer in question was not the respondents, but one located in a communal area of an apartment in which the respondent lived; according to the record, the respondent used the communal computer only on occasion to watch the news.  In a footnote, the court noted that none of the videos found on the communal computer were training materials; several originated from the recognized news source Al Jazeera, and “that on the whole, the computer did not produce any direct or causal link suggesting that [they] espoused violence, such as email messages of a questionable nature.”  The circuit court therefore remanded the record back to the BIA, with clear instructions to reconsider the discretionary factors “with due deference to the IJ’s factfinding before weighing the various positive and negative factors…”

The question remains as to why the BIA got this so wrong.  One possibility is that as the case involved allegations that the respondent might have harbored terrorist sympathies, the Board members let emotion and prejudice take over (apparently three separate times, over a period of several years).  If that’s the case, it demonstrates that 15 years after the Ashcroft purge, the one-sided composition of the Board’s members (with no more liberal viewpoints to provide balance) has resulted in a lack of objectivity and impartiality in its decision making.  Unfortunately, the appointment of more diverse Board members seems extremely unlikely to happen under the present administration.

But I believe there is another possibility as well.  15 years later, the Board remains very cognizant of the purge and its causes.  It is plausible that the Board made a determination that as a matter of self-preservation,  it is preferable to be legally wrong than to be perceived as being “soft on terrorism.”  If that is the case, there is no stronger argument of the need for an independent immigration court that would not be subject to the type of political pressures that would impact impartiality and fairness.

It also bears mention that unlike the Board, the immigration judge in this case faced the same pressures, yet did not let them prevent him from issuing an impartial, fair, and ultimately correct decision (in spite of having his first decision vacated and remanded by the Board).  Unlike the BIA, whose members review decisions that have been drafted for them in a suburban office tower, immigration judges are on the front lines, addressing crippling case loads, being sent on short notice to remote border locations, and dealing with DHS attorneys who now, on orders from Washington, cannot exercise prosecutorial discretion, must raise unnecessary objections, reserve appeal on grants of relief, and oppose termination in deserving cases.  Yet many of these judges continue to issue their decisions with impartiality and fairness.  Their higher-ups in the Department of Justice should learn from their performance the true meaning of the “rule of law.”  

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

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