Appellate Law

CA1: First screws up another Albanian asylum claim

By S. COTUS

Gjiknuri v. Gonzales, No. 07-1328 (unpublished) denies the asylum claims of Albanians.  Once again the First does something which is really bad.  They rely on an apparent form of stare decisis to conclude that asylum claims from some countries are not warranted.  Rather than review the agency?s evaluation of specific claims, the First simply declares:

The Gjiknuris? petition is foreclosed by Circuit precedent: Tota v. Gonzales, 457 F.3d 161 (1st Cir. 2006)[our coverage here], and Alibeaj v. Gonzales, 469 F.3d 188 (1st Cir. 2006)[our coverage here].

This is bad; bad; bad.  In case you don?t understand, let me explain why ? below the fold.

The USA has a foreign policy.  It is written by Congress and the Executive.  The USA has entered into various treaties, which sometimes require it to admit some aliens.  Likewise, Congress has decided that some people from oppressive countries are entitled to stay in the USA.  Rather than specify a list of the people that were oppressed, and entitled to live in America (and eat at TGI Fridays) , a fact-finding system claims for asylum would be made administratively made, and review of the procedures and factual findings would be in court.  With this in mind, every alien would be entitled to due process at the agency, and every alien would, should he wish, be entitled to claim that the agency screwed-up the process below in court.  Fair enough.

But this isn?t what the First is doing.  The First is saying that ?Albania is no longer an oppressive place.?  It isn?t saying, ?The agency reasonable found that Albania was no longer an oppressive place.?  It is saying, ?As a matter of Circuit law, any Albanian that claims to be oppressed loses no matter what he presents below and no matter what sort of defects are made in the fact-finding procedure.?  Now, I am sure the government doesn?t mind this.  After all, they won.

But, let?s say it was a bit different.  Say, the First concluded that, all people in the country of Lower Stupidia were, as a matter of law, oppressed and tortured for their political beliefs.  Every single immigration petitioner would be able to invoke stare decisis and have his petition for review granted, no matter what the facts, and no matter what the government attempts to assert in at the agency.  Lower Stupidia would be legally (not factually) such a bad place that the executive would be required, by the application of a judicial doctrine, to grant them asylum. 

Now, I am not saying that these petitioners should be allowed to stay in America, but I see a great incursion into the lawful power of Congress and the executive.  This is something that needs to go en banc. 

There is some stuff rejecting a due process challenge, but I don?t think that the First is taking it too seriously.

Full post as published by Appellate Law and Practice on January 15, 2008 (boomark / email).