Wednesday, January 16, 2008

Jahjaga: BIA Must Offer Actual, Intelligible Reasons For Refusing To Reissue Decision

Jahjaga v. Mukasey, No. 06-2866 (3d Cir. Jan. 4, 2008).

The Third Circuit ruled that the BIA erred in how it refused to reissue its decisions and in not reviewing the claims of the appellants that they never received the BIA's decision, even though the BIA thought it mailed it to the last address of record. Although both cases in this consolidated appeal arose out of cases by Judge Eugene Pugliese, the Third Circuit focused on the BIA's reasoning and nothing that Judge Pugliese decided.

First, the Third Circuit of course has jurisdiction to review the BIA's refusal to reissue its decisions. The government for some reason started arguing that a BIA refusal to reissue its decision is not a final order of removal, but the Third Circuit rejected that effort -- just as a denied motion to reopen is a final order, so is a denied motion to reissue a decision.

Second, equally strangely, the government also argued that the Third Circuit could not review the BIA decision because it was supposedly discretionary and therefore not open to judicial review. Strange, because it is quite a losing argument -- only acts specified in a particular subchapter of the statute to be in the AG's discretion avoid judicial review.

The Third Circuit agreed with the Ninth Circuit's ruling in Singh v. Gonzales, 494 F.3d 1170 (9th Cir. 2007) -- if someone asks the BIA to reissue the decision and offers an affidavit that tries to rebut a presumption that he received what the BIA thinks it properly mailed out, then the BIA must analyze and address that factual issue. The BIA can't just summarily and cryptically refuse to reissue its decision. It must offer some intelligible reasoning. The Third Circuit did not adopt the Second Circuit's approach in Ping Chen v. Attorney General, 502 F.3d 73 (2d Cir. 2007), which said that even though the BIA offered no intelligible analysis, the Second Circuit would assume the BIA adopted a justifiable approach that a cover letter in the BIA's file is substantial evidence the BIA actually had mailed it out and that the appellant got it.

It's great that the Third Circuit is requiring the BIA to offer intelligible reasoning to its decisions. It is almost hard to believe that we are at a point where it takes federal judges to force the BIA to make decisions in a thoughtful, rational, and understandable way. Imagine the dark ages we'd have if Congress got rid of this critical level of federal court review!


Anonymous Anonymous said...

Thank you very much for this information about the BIA. The Board shared my information and knowingly linked me to a criminal defender who was not authorized to act on my behalf and got me listed as a jail bird and in the process just simply dismissing my case dismissed my case. They held my case hostage for five years and I am now confident enough to go pick up the pieces.

4:21 PM  

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