Appellate Law

CA1: Cyr dissents in Albanian asylum case

By S. COTUS

Cuku v. Mukasey, No. 07-1273. An IJ found the petitioner not to be credible, relying on inconsistences and problems with chains of custody.  The First says that is okay.  It also says the conduct of the IJ is okay.  Normally this is all I say.  But this draws a dissent from Judge Cyr.  Since the Fir st seems to have been rubberstamping a lot of immigration appeals recently, I figure that the dissent is worth analyzing.

Cyr points out that the agency did not completely adopt the IJ?s decision.  Indeed, it rejected some of the IJs grounds.  Cyr says that the First is misreading the record.  Cyr explains how reviewing the combination of IJ decision and board affirmance leads to crappy judging.  He writes:

By denying Cuko?s petition for review on this basis, the majority essentially condones and rubber-stamps an undesirable policy and practice: an IJ silently may collect what he perceives as testimonial discrepancies of a latent kind which would not be readily apparent to the asylum applicant or his counsel, offer the applicant no contemporaneous opportunity to explain why his perception is faulty, and then blindside the applicant after the fact with an asylum decision premised entirely on his untested adverse credibility findings. This practice is not only at odds with our clear precedent, but would subvert the essential truth-seeking function of asylum proceedings.

...

Finally, from a broader policy perspective, I would suggest that this case is a prime example of what is so defective with many immigration proceedings. While the IJ reasonably might have accepted Cuko?s credibility arguendo, and then denied his asylum application either on the ground that his ill treatment did not rise to the level of ?persecution,? or that the country reports refuted his fear of any future persecution (indeed, we have affirmed many IJ opinions to the effect that country conditions in Albania have changed significantly), the IJ deliberately chose silently to collect a catalog of perceived testimonial discrepancies during the hearing, and then base his final decision solely on Cuko?s lack of credibility. This may seem a relatively insignificant and academic distinction, but to an asylum applicant, it likely affects his sense that he has been given a fair opportunity to state his case for asylum. He is removed to his home country simply because he is a liar, and not because he has not proven past persecution or a well-founded fear of future persecution.

He also goes through the things that the IJ did and concludes that they were not really supportable.  Whatever.  I never though that the First was taking these things too seriously.  For other problems with the First?s Albanian-Asylum ?jurisprudence? see here.

Full post as published by Appellate Law and Practice on March 31, 2008 (boomark / email).