Tuesday, January 25, 2011

Seventh Circuit finds BIA summary affirmance procedure to benefit noncitizens and not just DHS

Ward v. Holder No. 10-2063

United States Court of Appeals for the Seventh Circuit

2011 U.S. App. Lexis 1184 (January 21, 2011)

Ms. Ward and her daughter entered the United States on a K visa march 2004. Ms. Ward married her U.S. citizen fiancé May 2004. The marriage dissolved shortly thereafter without a filing of an adjustment of status application. Ms. Ward was placed in removal proceedings November 2006. Ms. Ward submitted a VAWA self petition which was denied April 2007. In December 2008 an immigration judge denied her application for VAWA cancellation finding that Ms. Ward was by "clear and convincing evidence" ineligible for cancellation. The BIA affirmed the IJ’s decision on March 31, 2010; a single board member issued a three page decision.

Ms. Ward’s counsel appealed to the Seventh Circuit arguing that the lengthy opinion demonstrated that the board member went beyond the scope of his power to affirm, modify, or remand an immigration decision in a "brief order" pursuant to 8 CFR Sec. 1003.1(e)(5). In other words, if the case merited a decision of such length, then it merited a three-judge panel review.

The Seventh Circuit in Martinez-Camargo v. INS 282 F.3d 487 (7th Cir. 2002) established a two-pronged test to evaluate whether the failure to adhere to an immigration administrative guideline rendered the underlying action taken invalid. The first prong is to ask whether the regulation in question serves a "purpose of benefit to the alien." The government in the present case argued that Sec. 1003.1(e)(5) was a case management regulation to help the Board handle cases and therefore not intended to benefit the alien. The Seventh Circuit disagreed stating that "The fact that the presence of a ‘need to review a clearly erroneous factual determination’ is a basis for three-member panel review underscores that the regulations were designed in the interest of justice as well as efficiency."

 

The second Martinez-Camargo prong requires the court to determine whether the alleged violation of the regulation set forth therein prejudices the petitioner. The Circuit found that there was neither prejudice nor a violation. 8 CFR Sec. 1003.1(e)(5) has been found not to be prejudicial in general. As to the plaintiff’s contention that the fact that the BIA board member issued a longer than average decision was not conceivable under the regulatory scheme, the circuit countered that "To require referral to a three-member panel in each case that lends itself to more than a cookie-cutter order would be contrary to the plain language of Sec. 1003.1(e)."

EQ 

 

https://lawprofessors.typepad.com/immigration/2011/01/seventh-circuit-finds-bia-summary-affirmance-procedure-to-benefit-noncitizens-and-not-just-dhs.html

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