Monday, October 31, 2005

Judge Samuel Alito and Immigration Rulings

Newspapers suggest that Judge Samuel Alito of the Third Circuit Court of Appeals may be the next nomination for the United States Supreme Court.

A quick review notes that Judge Alito dismissed an immigrant's appeal in Chen v. Ashcroft in 2004, which held that a judge's credibility determination against the immigrant's asylum claim should be upheld.

Also, in the very recent decision of Mahmood v. Gonzales, Case No. 03-3760 (3d Cir. Oct. 27, 2005), the majority of the three-judge Third Circuit panel explained that equitable tolling should allow for an application beyond the usual 90-day deadline for a motion to reopen and distinguished an older case where the immigrant was partly at fault by not providing a new address to the attorney of record, which made it difficult to contact the immigrant about the legal proceedings. Judge Alito agreed but only insofar as saying the decision was controlled by a recent Third Circuit ruling and did not join the explanation. Perhaps this is a way of signalling that Judge Alito does not like the rationale but feels he is bound by the court's earlier decision.

In the case of Chang v. INS, 119 F.3d 1055 (3d Cir. 1997), Judge Alito wrote a dissent that suggested someone seeking a type of protection called withholding of deportation should not qualify because he felt the immigrant did not indicate a precise political opinion he held that cased the Chinese government to punish him and that his action of not reporting other Chinese delegates to the government was because he was unsure, not because he chose not to help China enforce its law against its political opponents. The majority, though, disagreed with Judge Alito and granted withholding of deportation to the immigrant because it was clear that the immigrant would be persecuted, punished, and jailed if he returned -- and that even if the immigrant did not give away any secret information, he proved that the Chinese government probably thought that he did. Judge Alito's dissent would have denied protection and forced the man to be deported back to China.

Update: Jennifer of Ludden of NPR filed an audio report about Judge Alito and his rulings in asylum cases (one type of immigration cases). She reports that many critics believe Judge Alito is heavily anti-immigrant in asylum cases and focus on Dia v. Ashcroft, No. 02-2460, (3d Cir. Dec. 22, 2003). In that case, a manfrom Guinea testified about his wife being raped and beaten in the past, how he fled into the United States, and how he would be in danger if returned to Guinea. The immigration judge ruled she was not credible, but the majority of the Third Circuit overturned the decision because the immigration judge's ruling "was based on reasoning that was at best unexplained and at worst speculative." Judge Alito, though, wrote a dissent, arguing that an immigration judge should be able to discard testimony as incredible based solely on a judge's "background knowledge," such as Judge Alito's belief that if a wife was savagely raped and the couple was in grave danger, the wife would never in a million years agree for the husband alone to flee. The majority, though, rejected Alito's suggestion and noted numerous plausible reasons such as how it might be easier for a single person to escape rather than someone carrying an injured wife and a child, or that the wife may have been too injured to travel immediately. I guess Judge Alito rolls his eyes whenever an injured person in a crisis tells a friend to leave them behind and save themselves. (Doesn't this happen all the time in Star Trek?) The majority also sharply criticized Judge Alito's attempt to replace the "substantial evidence" standard with a rule that prevented overturning an immigration judge unless "no reasonable adjudicator" would possibly agree. The majority chastised Judge Alito for suggesting something that "not only guts the statutory standard, but ignores our precedent."


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