Appellate Law

CA1: I think the court is trying to make foreign policy here

By S. COTUS

Maramis v. Mukasey, No. 07-1552 (unpublished) denies a petition for review of an Indonesian Christian.  I notice two things, 1) counsel and the IJ didn?t use the term "pattern or practice? (and the First tries to deal with this problem); and more disturbingly 2) The First Ciruit relies on its prior caselaw to say that Christians are not being oppressed in Indonesia.  This second thing is really bad.  The First has to address each petition for review on the merits, based on the record provided below, leaving the parties to their burden of proof.  It simply cannot conclude, as a matter of law, that certain countries are hunky-dory.  It may well be that one Indonesian was prosecuted, but not another.  It may well be that one Indonesian makes a bad case, but another makes a better case.  The First seems to be acting like an administrative agency here.

Also, I note that if the First is going to get into the business of determining which countries are cool for Christians, they might as well declare that they have precedents on which countries are actually oppressing certain classes, too. I doubt that anyone really want the First Circuit making this kind of foreign policy judgment.  But, I guess that is what the judges think they can do.

Note: This isn't the First time the first did this.  Plaka v. Gonzales, No. 05-2341 (unpublished) (our coverage here) (Albanian not oppressed).

Full post as published by Appellate Law and Practice on January 09, 2008 (boomark / email).