*1 сorroborating obtain statutory evidence. Alterna- does not violate the right rep- and, case, tively, hearing, on remand after a new deny resentation did not may Rapheal Rapheal IJ find credible right representation. her there is no hearing provided need for corroborative evidence also Rapheal with a rea- or that evidence opportunity present corroborative is unavail- sonable evidence on However, able on additional basеd evidence of Ra- her own behalf. from the record pheal’s attempts case, to locate such evidence. we that Rapheal conclude did However, again if the IJ finds Ra- not have a chance to Immigra- review the credible, pheal Report is not without against corroborative admitted her. Given evidence significance she will be unable to succeed on the placed IJ on the hand- relief. See 8 U.S.C. written notation of “Kocoker” in her claims for Immi- (“The 1158(b)(l)(B)(ii) tеstimony of the gration Report, required remand is to al- applicant may Rapheal be sufficient to sustain the low to review that document and applicant’s corroboration, testify burden without following her review of the docu- only applicant remand, if the satisfies the trier ment. On Rapheal because is applicant’s testimony fact that is entitled to a new hearing comports credible, persuasive, is spe- statutory and refers to requirements, Rapheal is cific facts suffiсient to demonstrate that free to any corroborative evidence applicant refugee.”). Finally, is a we she has obtained. The IJ is also free to although note that conferencing judge video credibility her and the need for cor- evidence, available and satisfies constitutional and roborative as consistent with the statutory standards, gov- this case the presented evidence hearing. the new ernment’s decision to hold a petition video confer- We GRANT for review and Re- strange ence seems govern- proceedings because the consistent with this mand transport opinion. ment had to Rapheal greater participate
distance to in the video confer-
encing than the distance it would have had bring her to attend hearing live remand,
before the IJ. On encourage we Rapheal’s IJ to consider anew request for an in-person hearing, given logis- Agron KUCANA, Petitioner, tics involved in this case.7 MUKASEY, Attorney Michael B.
III. States, General of the United Congress authorized the use of video Rеspondent. conferencing for immigration hearings No. 07-1002. and, facially, comports this authorization requirements with the of due process. United States Appeals, Court of Rapheal While presents also an as-applied Seventh Circuit. process due challenge, those claims are Argued Dec. 2007. properly challenges considered as July Decided 2008. claimed denials of statutory rights. her The use of conferencing, video even though
it separates attorneys clients, from thеir sue, appeal, Rapheal however,
7. argues On also that the remanding IJ because denying abused its discretion in her an in- case for a new and on remand the IJ person hearing. may We need not reach this is- differently. exercise its discretion *2 IL, Lang (argued), Chicago,
Michael R. for Petitioner.
Kathryn DeAngelis (argued), Depart- Division, Immigration ment Justice Civil DC, Washington, Respon- for Litigation, dent. EASTERBROOK, Judge,
Before Chief RIPPLE, and CUDAHY Judges.
EASTERBROOK, Judge. Chief Albania, Kucana, a citizen of en- Agron a business visi- tered the United States as not leave when his visa tor 1995 and did but, asylum when expired. applied He at thе in the fall appear he did not removed in absen- he was ordered reopen, a motion to tia. He soon filed overslept. he had An im- contending that motion, and in migration judge denied Immigration Appeals the Board of Kucana did not seek affirmed. order comply he with the review—-nor did Kucana quit States. United this time filed another motion country in Al- contending that conditions he would bania had deteriorated persecution a victim of should he return federal courts’ to review dis- Kucanа, cretionary there. who describes himself as decisions of offi- markets, democracy Act, supporter of and free cials. Section 1252(a)(2)(B)(ii), contends that holders of these views are at provides that no U.S.C. *3 beatings risk of and murder Albania. “any court has to review other motion, immigration judge The denied this Attorney decision or action of the General held that the IJ appeal and on the Board Secretary Security or the of Homeland jurisdiction, mo- lacked because successive specified for which is under this directly reopen tions to must be filed subchapter to be the discretion of the the Board itself. Attorney Secretary General or the Security, grant- Homeland other than the (second) Treating papers Kucana’s as a 1158(a) ing of relief under section of this reopen, motion to the Board denied that 1158(a) title.” deals with applica- Section in Albania relief because conditions have asylum, tions for the decision that improved since 1997. 2006 “Stabiliza- Kucana wants us to review not is one Agreement” tion and Association between 1158(a)”; § “under it is a decision not to European Albania and the Union was rati- request and thus not to revive a agreement In 2007 a fied. visa was asylum that for had been abandoned in reached, can through- so Albanians travel 1997 when Kucana failed to attend the today out the EU. Albania is a democratic subject. scheduled to address that guarantees nation with international of hu- man rights; reported there have been no Recently ques- this circuit addressed the political killings years. or detentions for tion—on which other courts of are 1252(a)(2)(B)(ii) § ap- divided—whether argues
Kucana in this court that plies agency’s speci- when the discretion is the Board abused its discretion because it by regulation fied rather than a statute. did not mention Professor Bernd Fischer’s parties After the filed their briefs affidavit discussing conditions Albania. case, Gonzales, we held in Ali v. 502 F.3d Abuse of discretion is right standard. 1252(a)(2)(B)(ii) Cir.2007), § requires No statute the Board to аpplies discretionary decisions under circumstances, any regulation under and a regulations imple- that are based on and confirms that the Board has discretion to Immigration Nationality ment the Act. deny relief even to an alien who would discretionary The decision in Ali was decision, have received a favorable had the request whether to an alien’s for a argument presented been earlier. a hearing; continuance of here the discre- 1003.2(a). § C.F.R. It per is difficult to tionаry decision is whether to discretion, ceive an abuse of for Prof. proceeding hearing. and hold a Reg- new Fischer’s affidavit does not document a specify ulations that both decisions are change 1997; in Albanian conditions since discretionary; regulations both draw their it is instead a reaching historical narrative provisions force from Act allowing back to the time when Albania was totali govern tarian officials to their own dictatorship. parties’ But 1229a(c)(7) proceedings. agreement that See 8 U.S.C. “abuse of discretion” is the Board). (authority for reopening standard of It review led us to wonder they subject follows that equally whether we considering should be Kuca 1252(a)(2)(B)(ii). argument na’s at all.
As amended
ID
parties
Real Act of
asked the
post-argument
We
Immigration
Nationality
Act limits memoranda on the effect of Ali and
order,
1252(a)(2)(B)(ii).
the De- vate
when
order itself is
Surprisingly,
unreviewable;
argued
advisory
Justice
that would be an
partment
does not cover decisions opinion.
Corp.
See Powerex
v. Reliant
—
Services,
reason for
principal
Inc.,
U.S. -,
not
Energy
(at
to which
least the one
(2007).
this conclusion
S.Ct.
168 L.Ed.2d
space)
devotes the most
the memorandum
Department’s
A second contention in the
the Board
that in cases such as Kucana’s
is
post-argument memorandum is that
(whether
a factual decision
coun-
making
already
court has
held
worsened) rather than
try conditions have
inapplicable
reopening
decisions. The
begin
discretionary
one. This does
рanel
Singh v.
deciding
Ali. Before
whether
distinguish
(7th Cir.2005),
said this:
*4
(the discretionary
to
a continuance
1996,
Before
for motions to
decision),
de-
immigration judge
an
must
reopen
solely
regula-
derived
from the
good
a
reason for
cide whether there is
tions.
codified
motion
to
time,
in turn on
depends
more
which
in
in
reopen process
8 U.S.C.
the statements of fact said to
whether
1229a(c)(6),
§
provision
within the sub-
Surely
are true.
good
constitute the
cause
in
chapter
referred
to
of the alien’s circumstances
the evaluation
1252(a)(2)(B)(ii)].However, the statu-
[§
notwithstanding
cannot
be
reviewed
tory language only describes the con-
1252(a)(2)(B)(ii)
§
and Ali.
reopen
filing
tents of motions to
and the
decision,
Every discretionary
unless
Conspicuously
any
deadlines.
is
absent
coin,
flip
of a
rests on the
made
specific language entrusting the decision
appreciation of the state of the
tribunal’s
on a motion to
to “the discretion
of the world. Sec-
litigation and
state
Moreover,
Attorney
of the
General.”
1252(a)(2)(B)(ii)
nоt mean that a
could
1252,
§
subsection of
the section that
ran-
decision is unreviewable when made
jurisdiction-stripping
also contains the
that
if the
domly
unthinkingly,
or
provision, provides
petition-
that when
application
attention to an
agency pays
appeals
er
a motion to
or recon-
does,
it
then
acting
and has reasons for
as
order,
appeal
should be
sider
(because in
those reasons can be reviewed
un-
appeal
with the
consolidated
principle
precede,
the reasons
and do not
1252(b)(6).
derlying order. 8 U.S.C.
discretion).
stripe
This is a
equal, the
unnecessary if
would be
provision
That
in
argument that we have considered
other
1252(a)(2)(B)(ii)
juris-
deprived us
See,
wanting.
e.g.,
found
contexts and
place.
first
See Stone v.
diction
Co.,
Liberty
v.
Mutual Insurance
Daniels
INS,
386, 397, 115
514 U.S.
S.Ct.
Cir.2007)
(prohibition on
motion
(8th
Cir.2008); Thong
n. 1
to motions to re- F.3d
789
appear
apply equally
Gonzales,
506 F.3d
1209-
philack
for which must be
consider—the basis
(10th Cir.2007).
principal opinion
10
misapprehension
mistake or
of law. See 8
short,
minority
with
would cause us
become
1003.2. In
the rationale of
C.F.R.
conclusion,
minority,
giving
executive
logical
taken to its
de-
Al%
branch the
to insulate its deci
jurisdiction
of
to review
prives this court
review where there is
fact
law made
sions
the BIA’s mistakes of
in the
no clear indication
statute
Con
during
deciding
the course of
whether an
gress
strip
jurisdic
us of our
from this
intended to
alien should be removed
Coun-
posture
respect
tion. Our isolated
try.
may give
pause
us
herе.
today
Although
appears
the result
to be
approaching
problem presented
In
respectful-
circuit
I
precedent,
dictated
case,
I believe
the first
that,
ly suggest
had
intended to
effort should be to reconcile Ali with
deprive
jurisdiction
specific
this court
Gonzales,
1024
F.3d
Cir.
decisions,
substantive
it would have done
2005)
policies underlying
since the
stare
explicitly,
so
as it did
8 U.S.C.
suggest
preferability
decisis
recon-
1252(a)(2)(B)(i).
spreads
As Ali
its do-
rejection
ciliation
precedent
its
fields, it
turning
minion to
substantive
in part.
whole or
McClain v. Retail Food
this court into a virtual council of revision
Plan,
Employers Joint Pension
respect
to settled federal law. Before
(7th Cir.2005).
And I
believe that
taking
steps,
these
we should revisit the
precedents may
comfortably
these two
holding in Ali and determine whether we
reconciled.
closely
should chart a course that more
statutory language
adheres to the
chosen
Singh,
“spe-
we held
the lack of
by Congress.
and enacted
language
cific
entrusting the decision on a
motion to
to ‘the discretion of the
”
CUDAHY,
Judge, dissenting.
Attorney
General’ meant
the court
had
to review the BIA’s deci-
In Ali v.
F.3d
on a
reopen. Singh,
sion
motion to
(as
Cir.2007),
view,
adopted
which
*7
F.3d at
(quoting
1026-27
8 U.S.C.
opinion acknowledged)
minority
is in a
1252(a)(2)(B)(ii)).
petitioner
In
the
circuits,
among
respect
one
the
to our
Ali
appealed
immigration judge’s
an
denial of
jurisdiction
appeals
over
from denials of
his motion for a continuance. We found
continuances. Six of our sister courts had
that althоugh continuances were men-
concluded that 8 U.S.C.
only
immigration
tioned
regulations and
preclude
appellate
did not
federal
courts
statute,
not in a
judge’s
reviewing
denying
from
orders
such mo
a continuance derives
Only
Eighth
tions.
the
and Tenth Circuits
Ali,
(citing
from a statute.
open, a decision of the a mistake or Appeals that is based on factual basis of misunderstanding of the SPAULDING ENTERPRISES INCOR into the realm expansion the claim. This PORATED, Spaulding Moving and of outcome determinative decisions takes Storage Incorporated, Spaulding statutory long way language us a from the Trucking Incorporated, John J. Lala by Congress. chosen and enacted See 8 gos, Lalagos, Rosetti, P. Laura Jean 1252(a)(2)(B)(i). U.S.C. Rally Capital Services, LLC, and Jef deny aliens review of Applying Ali frey Samuels, Defendants-Appel D. reopen crystalizes the decision whether to lees. revisiting the breadth of importance No. 07-2606. holding: Supreme Court has
analogized
motions to
to motions
Appeals,
United States Court
under the Federal Rule of Civil Procedure
Circuit.
Seventh
INS,
60(b),
see Stone
U.S.
3,
Argued April
2008.
(1995).
115 S.Ct.
sey, U.S. 128 S.Ct. 2322- (2008).
24,
ing Supreme Court should make us
pause, deep take a breath and consider really
anew whether we want to take the path contrary
Circuit down a so
manifest intent of and to the
Supreme that in- understanding Court’s course,
tent. If we take such our deci- scrutiny
sion will no doubt warrant close Supreme Sup.Ct. Court. See R. 10.